Subway chokehold death: Daniel Penny acted to protect life, defense states during trial's openings

Daniel Penny, the Long Island Marine veteran on trial for the chokehold death of a homeless man in a city subway last year, had no intention of killing anyone, his defense lawyer said during opening statements Friday, saying Penny acted to protect his own life and the passengers on the train.

A Manhattan grand jury indicted Penny, 26, originally of West Islip, last year of second-degree manslaughter and criminally negligent homicide for the death of Jordan Neely, 30, a subway performer with a history of drug use and mental health issues.

Neely boarded an uptown F train just before 2:30 p.m. on May 1, 2023, and began screaming loudly and threatening passengers.

One passenger told investigators Neely said: "Someone is going to die today," according to court records.

"This is a case of a young man who did for others what we would want him to do for us," defense attorney Thomas Kenniff told the court.

Manhattan Assistant District Attorney Dafna Yoran agreed that Penny’s original intention to protect himself and others was "laudable." She called him "an honorable veteran and a nice young man," but "he went way too far."

"He was aware of the risk that his actions could have killed Mr. Neely and he did it anyway," the prosecutor said. "The evidence will show that the defendant was so reckless with Mr. Neely’s life because he did not recognize his humanity."

Kenniff called Neely a "seething psychotic" who had balled his fists and "assumed a fighting stance."

The lawyer described a panic on the train as it traveled from the Second Avenue stop to the Broadway-Lafayette station. He said Neely whipped off his jacket, threw it to the floor and started moving up and down the train.

"Seconds later, Neely sets his sights on a bench of female passengers, they, like Danny, are petrified, not knowing what Jordan Neely will do next," the lawyer said. "When Jordan Neely threatened to kill, there was only one thing for Danny Penny to do."

But his intentions, Yoran said, are not the reason that Penny is on trial; it was the length and the manner of the grip that the Long Island man had on Neely’s throat.

The prosecutor said that the grip on the homeless man’s throat lasted longer than five minutes, and Penny kept it on for 50 seconds after Neely stopped moving.

Yoran said that Penny continued to lock his arms around Neely’s neck well after the train pulled into the Broadway-Lafayette station and the other passengers had fled the subway car.

A cellphone video taken by Mexican journalist Juan Alberto Vasquez, who happened to be on the platform, will be "the most critical piece of evidence at this trial."

"You will watch in real time as the defendant bears down on Mr. Neely’s neck," Yoran said. "You will see Mr. Neely’s life being snuffed out before your very eyes."

Penny knew the danger of the chokehold, Yoran said, because he rose to the level of a green belt in his martial arts training in the Marine Corps. Penny’s military instructor is expected to testify during the trial.

The prosecutor detailed two types of chokeholds — the "blood choke and the air choke" taught in the Marine Corps.

Yoran said that Penny used a combination of both to block the flow of blood and oxygen to Neely’s head.

"The defendant continued to use these two types of chokeholds, either deliberately or unintentionally," she said. "He most certainly pushed Mr. Neely to the point of no return and he would die."

Kenniff told the jury that the cause of Neely’s death may never be known. The homeless man, he said, struggled with drug addiction and sickle cell anemia and could have died of cardiac arrest.

"He did not die of asphyxiation," he told the jury. "The killing of Mr. Neely is not something that he could have intended."

After opening statements, NYPD Officer Theodoro Tejada spoke about responding to the scene.

Prosecutors played his body camera footage showing Neely on the subway floor as Penny stands by in the background. Police and FDNY EMS workers are seen pumping his chest performing CPR on Neely.

Neely’s family sat in the audience toward the back of the courtroom weeping at the footage.

Several of the other responding NYPD officers took the stand, testifying that Penny remained at the scene and was cooperative. In the body camera footage, he seemed to thank another passenger for helping him.

Testimony is scheduled to continue Monday, but the case will break on Tuesday for Election Day and Wednesday for the judge's other case. It will then resume on Thursday.