Subway chokehold trial: Closing arguments expected today in manslaughter, criminally negligent homicide trial of Marine veteran Daniel Penny

A Manhattan jury will hear closing arguments on Monday in the case against Daniel Penny, a West Islip Marine Corps veteran currently on trial for the chokehold death of Jordan Neely last year in a city subway car.

Neely, a homeless subway busker who made money impersonating Michael Jackson, burst onto the Queens-bound F train at Second Avenue about 2:30 p.m. on May 1, 2023, declaring "someone is going to die today," and demanded food and a soda, according to witnesses and trial evidence. Neely was 30 when he died.

In the 30-second trip between Second Avenue and the Broadway-Lafayette stop, Penny, who had moved to the East Village to study architecture at the New York Institute of Technology, came up behind Neely and put him in a chokehold then took him to the subway floor.

Defense lawyer Thomas Kenniff said during opening arguments that the use of force against Neely was clearly justified.

"This is a case of a young man who did for others what we would want him to do for us," Kenniff said. "You either bury your head and pray or you stand up and protect thy neighbor."

Penny, who had been trained in the military extensively on several types of nonlethal restraints, held Neely for nearly six minutes, according to prosecutors, struggling to keep the homeless man from getting back up.

Assistant District Attorney Dafna Yoran called the Long Island native’s initial actions "laudable" during opening arguments, but said he held the restraint "way too long."

Neely died of asphyxiation from the chokehold about an hour after boarding the train, according to the Office of the Chief Medical Examiner, which said the manner of death was homicide.

After a brief interrogation in the 5th Precinct station house, authorities released Penny, who is white, without charges, sparking outrage from criminal justice reformers and civil rights activists.

"White Privilege is on trial at 100 Center Street," Hawk Newsome, head of Black Lives Matter of Greater New York, said outside the courthouse last week after trial testimony. "A rich white kid from the suburbs choked a Black, homeless, mentally ill person who he called a ‘crackhead’ and the police did not arrest him."

More than a week after Neely’s death, a Manhattan grand jury indicted Penny, 26, on second-degree manslaughter and criminally negligent homicide.

The prosecutors have argued that Penny had been taught the dangers of the chokehold but used it recklessly, resulting in Neely’s death.

"He was aware of the risk that his actions could have killed Mr. Neely and he did it anyway," Yoran said. "It was criminally reckless for him to choke Mr. Neely in this manner and for such a long time."

Cellphone video taken by a freelance journalist of the scene shows that two men joined in, trying to keep Neely down as they waited for police to arrive.

Trial testimony painted a study in contrasts between Penny and Neely.

Penny was an A student at West Islip High School, his mother testified. He played bass in the Long Island Orchestra and hoped to go to college at the Naval Academy with his lacrosse skills, she said. When he didn’t get in, he joined the Marine Corps, where he served for four years, then enrolled in college for architecture.

Neely, 30, who was Black, was raised in New Jersey until his early teenage years by his mother, who was killed by her boyfriend. Neely testified against the boyfriend at trial.

He bounced around between homes of his extended family and became known in the subway for his Michael Jackson impressions.

He also developed a synthetic marijuana habit and signs of mental illness, according to psychiatric files entered into evidence at trial.

"He volunteered that Tupac Shakur had used him to change the world," an August 2015 Bellevue doctor’s note said. "When asked to elaborate he rambled about people switching their hairstyles and giving out free food."

Neely, who had been hospitalized six times over nearly a decade for psychotic episodes, never touched any of the subway riders or specifically threatened anyone, Manhattan prosecutors said during the trial, but several passengers testified that they feared for their safety.

One passenger, Lori Sitro, testified that she tried to hide her son behind her stroller to create a barrier between Neely and her child. Caedryn Schrunk, a brand manager for Nike, told the jury she thought that she would die that day and that Neely sounded "satanic."

On Monday, after closing arguments, Supreme Court Justice Maxwell Wiley, who has presided over the monthlong trial, will instruct the jury on how New York applies self-defense to homicide.

"Justification does not operate to excuse a criminal act," Suffolk County defense attorney Danielle Coysh, who said self-defense lies at the heart of the case. "If the use of force is justified, it is not criminal."