Trial of Daniel Penny, a former Marine and LI native, will be in the fall, judge says

Daniel Penny, the West Islip native charged with killing a homeless man on a Manhattan subway, lost his bid Wednesday to have his case dismissed.

Penny, a former Marine who was recorded in May by a fellow commuter putting subway busker Jordan Neely in a deadly chokehold, was indicted a month later on charges of manslaughter and criminally negligent homicide.

The death had a polarizing effect on the public, with some rushing to Penny’s defense, decrying the problem of crime and homelessness on public transportation, and others calling for justice over Neely’s death.

Penny entered the courtroom on Wednesday wearing a green suit and a gray tie, flanked by court officers.

Judge Maxwell Wiley said the trial would be set for the fall.

In October, Penny’s lawyers submitted court papers to drop the case, claiming their client acted in self-defense.

Penny said he acted in self-defense and to protect fellow passengers after Neely entered the F train around 2:30 p.m., threw his jacket to the ground and announced, “Someone is going to die today,” according to the motion.

Grand jury interviews submitted with the brief show that other passengers on the F train felt threatened by Neely’s behavior.

“I want to hurt people. I want to go to Rikers. I want to go to prison,” one witness quoted Neely saying.

Another said: “I have been riding the subway for many years. I have encountered many things, but nothing put the fear in me like that,” according to the lawyer’s submission.

Penny admitted coming up behind Neely and putting him in a chokehold. A cellphone video of the encounter showed that he held his grip for five minutes, but the Manhattan district attorney said it was much longer.

The Long Island man stayed at the scene when police arrived, told officers what happened and was not arrested at the time.

That sparked an outcry from advocates for the homeless and for equal justice, who said Penny, who is white, was being given deferential treatment because of his race and economic status.

Neely, who was Black, suffered mental health issues after his mother was murdered by her boyfriend when he was 14 years old. He was widely known on the city subway system as a Michael Jackson impersonator who busked for money.

At his funeral, the Rev. Al Sharpton told mourners, “When they choked Jordan Neely, they put their arm around all of us.”

Manhattan prosecutors countered with their own brief, arguing that Penny overreacted to Neely’s outburst.

They quoted another witness who was on the train that day who did not think the homeless man was dangerous.

“I’m from New York and I’ve been riding subways, buses all my life. I myself interacted, if not interacted, witnessed outbursts from people on the train, so I personally didn’t feel threatened by it … It was just common to me,” according to the prosecutor’s brief.

Another straphanger was quoted telling Penny, “If you don’t let him go now, you’re going to kill him.”

Penny never told police that he felt threatened by Neely, prosecutors said in their court papers.

“He’s like, if I don’t get this, this, and this, I’m gonna, I could go to jail forever,” he told responding officers, according to the district attorney. “He was talking gibberish, you know, but … I don’t know. These guys are pushing people in front of trains and stuff.”

After the hearing, Donte Mills, the lawyer for Jordan Neely's father, Andre Zachary, said, "We're looking forward to Daniel Penny facing a jury and us getting a verdict." 

A group of activists holding signs and chanting through a bullhorn surrounded Penny as he left the courthouse. Court officers held them off as he was ushered into a waiting black SUV and driven away as the protesters followed. One of them picked up a police barricade and threw it on a police car.