Subway chokehold trial: Jury sees video of Daniel Penny with arm around man's neck as witness says, 'He's dying. You gotta let him go'

Jurors in Daniel Penny’s chokehold death trial saw a video on Monday that shows the Long Island Marine veteran with his arm around the man’s neck on a subway car floor while a witness says, "He’s dying! You gotta let him go."

The video was shot by Ivette Mercedes Rosario, now 19 years old, who said she was returning home to the Bronx from high school with a friend when she testified Jordan Neely entered the F train car and began speaking in a menacing tone. It is unclear if Rosario’s video has been made public before Monday.

"I thought I was going to pass out because I was so nervous," Rosario testified under direct questioning from Manhattan Assistant District Attorney Jillian Shartrand.

Under cross-examination from Penny’s defense attorney Thomas Kennif, Rosario acknowledged that she did not see the entire incident between Penny and Neely because she had buried her head at one point in her friend’s chest.

"I got scared by the tone [of Neely’s voice,]" Rosario said. "It was an angry tone."

Rosario also testified that she did not hear anybody say that Neely was dying.

"You can hear it in the video, but in the moment, I couldn’t hear it in the moment," Rosario said.

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

Penny had pleaded not guilty, and his attorneys say he was defending himself and fellow passengers from a man who was acting unstable and menacing. In her opening statement on Friday, Manhattan Assistant District Attorney Dafna Yoran said Penny’s intention to protect himself and others was "laudable" but "he went way too far." She said he knew his actions could kill Neely but continued to place him in a chokehold anyway.

In his opening statement, Kennif called Neely a "seething psychotic’’ who was looking for a fight.

Rosario said Neely boarded the uptown F train at Second Avenue. "He stated that he was homeless, he had no money and he didn’t care about going back to jail," Rosario testified.

But Neely did not touch or move toward any passengers on the F train car on the afternoon of May 1, 2023, Rosario said, and he was not carrying a weapon.

A freelance journalist whose video of the incident has been widely seen on media websites and social media followed Rosario on the witness stand. Prosecutors have called video taken by Juan Alberto Vasquez, 59, the most critical evidence they will present to the jury.

The video shows Penny choking Neely for nearly six minutes after nearly all of the passengers left the F train, prosecutors said. Prosecutors are expected to show the video to the jury on Monday afternoon.