Judge in upcoming fatal subway chokehold trial rules jurors can see video confession, police bodycam recordings of defendant Daniel Penny

A Manhattan judge is allowing incriminating statements by a Marine veteran from Long Island after the chokehold death of a homeless man on a subway train last year to be heard by the jury at his upcoming trial. 

Supreme Court Justice Maxwell Wiley ruled that the statements made by Daniel Penny, 30, who lived in West Islip, were not taken unlawfully by police while he was in custody but before he was informed of his rights against self-incrimination.

"The court finds that the defendant's statements were made voluntarily and upon probable cause," Wiley wrote in a Friday afternoon decision, determining that the video confession and body-camera recordings could be shown to jurors.

Defense lawyer Steven Raiser said he accepted the judge's ruling and pointed out that portions of the body-camera footage would help Penny's case.

"The judge in his decision did note the importance of these witness statements and their value, while not relevant for a probable cause determination, are extremely valuable in support of a justification defense, which we fully intend to assert on behalf of our client at trial," the lawyer said.

In NYPD body-camera footage and during a recorded police interrogation, Penny, who was living in the East Village while taking architecture and engineering classes, admits to restraining Jordan Neely, a subway busker with a history of mental health issues. “He came on the train threatening people. I put him out," Penny, who mimes a chokehold with his arms, says on a police video.

Neely stopped breathing on the train after being restrained for six minutes, according to prosecutors. He died shortly afterward.

Penny was initially released from police custody, but after a public uproar, Manhattan District Attorney Alvin Bragg charged him with manslaughter and criminally negligent homicide more than a week later.

Nassau County Executive Bruce Blakeman held a rally in the days after the arrest outside the courthouse in Manhattan, criticizing the prosecutor and supporting Penny’s actions.

According to witness accounts, Neely got on the F train at the Second Avenue stop in Manhattan just before 2:30 p.m. on May 1 acting "erratically."

He threw his jacket on the floor of the subway car and began yelling that he wanted a Sprite or a ginger ale.

"He told everyone that he didn’t care what happened today, he didn’t care if he was going to jail," one witness said on a body camera video.

Penny came up behind Neely, by all accounts, and put him in a chokehold then took him to the ground.

"He literally saved the train," a bystander told police, according to the video.

At the hearing on Thursday, defense lawyers Raiser and Thomas Kenniff argued that police questioned Penny before his arrest even after they’d identified him as a suspect.

"That interrogation is contaminated," Kenniff told the judge. "It’s poisoned."

NYPD Det. Michael Medina testified Thursday that he had not spoken to responding officers at the scene and believed that Penny was just another witness to the crime, so he did not read him his Miranda rights during the initial interrogation.

Officer Dennis Kang and Sgt. Carl Johnson, who also took the stand at the hearing, contradicted the investigator, saying that they had told Medina what Penny and witnesses told them happened.

Medina described Penny as a "good Samaritan" in his police report, a description that Kang got from a witness.

In the video of the interrogation, Penny demonstrates on Medina how he held Neely in a chokehold.

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

The judge sided with Assistant District Attorney Dafna Yoran, who pointed out that Penny volunteered from his first interaction with police that he had held Neely in a chokehold and that all subsequent interviews were also done willingly.

"The questioning was done without force or coercion or promises," Wiley wrote in his decision.

In the video, investigators read Penny his rights against self-incrimination after he’s already confessed to holding Neely down. He continues discussing the incident after receiving the Miranda warning.

Minutes later, Penny asks if he’s being detained. When detectives say he is, he asks for a lawyer.

The trial could start as early as Oct. 21.