Subway chokehold case: Judge drops top charge of manslaughter in Daniel Penny's trial after jury deadlock

A Manhattan judge dismissed on Friday the top count of manslaughter against Long Island native Daniel Penny for the chokehold death of Jordan Neely on a subway train last year after jurors twice told a judge they could not reach a verdict.

The decision to clear the West Islip native of the most serious charge in the case came on the fourth day of deliberations after the jury sent their second note to state Supreme Court Justice Maxwell Wiley Friday afternoon that they were deadlocked in the case.

The panel appeared split on the question of whether Penny acted without justification when he came up behind the homeless man, brought him to the ground then held him around the neck for six minutes.

They had been instructed that if Penny reasonably felt that his life or the lives of others were in danger from Neely, who had been hospitalized due to schizophrenia a dozen times in six years, then they could not convict him.

The judge's decision leaves the lesser charge of criminally negligent homicide still pending against the Marine Corps veteran.

"Manslaughter in the second degree is dismissed," Wiley said. "What that means is that you are now free to deliberate on count two. You can no longer consider count one, but consider count two."

Manslaughter in the second degree carries a maximum of 15 years behind bars. Punishment for criminally negligent homicide is up to 4 years in prison. Both convictions have no minimum sentence, meaning Penny could serve no prison time if convicted.

The judge's instruction came after Manhattan prosecutor Dafna Yoran requested the more severe charge be withdrawn because of the panel's indecision in the case. Wiley dismissed the jury around 4 p.m. and told them to return Monday to continue their deliberations.

"We are obviously very pleased with the court's decision to withdraw the top count of this indictment," defense lawyer Thomas Kenniff said. "However, we have always maintained that Danny acted reasonably in restraining Jordan Neely, and justice will not be served until he is acquitted of criminally negligent homicide as well."

Kenniff requested a mistrial three times on Friday. The lawyer argued that case law prohibited the court from clearing the manslaughter charge.

The judge had also questioned the maneuver, citing 1999 case law in which an appellate court ruled that a jury has the "power to consider the lesser offense only after it actually reaches a 'not guilty' verdict on the greater one."

Ultimately, Wiley said that he would "take a chance" and side with the prosecution on keeping the lesser charge.

Kenniff cautioned that this decision sets a policy precedent that would encourage prosecutors to overcharge, knowing that if the jury can't agree on the top charge, the district attorney could still win a conviction on lesser charges.

Neely's father, Andre Zachery, who filed a wrongful death lawsuit against Penny on Wednesday, left the courthouse without commenting. Neely's uncle also did not comment, but stood before TV news cameras outside the courthouse as Hawk Newsome, the leader of Black Lives Matter New York, excoriated the jury for its indecision.

"Racism has its tentacles all over this case," he said. "Racism has its evil tentacles all over its case and all around the minds of white America. Are all white people bad? No, the prosecution did a phenomenal job. The judge is trying his hardest to bring justice to Jordan Neely but racism is still alive and kicking in America. There's no other way to view this."

The jury spent four days poring over video evidence of the May 1, 2023, struggle between Penny and Neely. The panel also asked for lengthy readbacks of complex testimony from the city medical examiner Dr. Cynthia Harris, who ruled Neely's death a homicide by asphyxiation caused by the chokehold. They also requested multiple legal definitions regarding the charges and how to view self-defense in the case.

Still, the jurors could not come to a consensus over the verdict and at about 11 a.m., they informed the court that they were deadlocked in the case.

Wiley responded by reading them an "Allen charge" — an instruction to continue deliberating rather than give up and pass the responsibility to another set of 12 people who would have to deliberate in the retrial.

"So, in accord with your oath, please continue to deliberate with a view toward reaching a verdict," the judge told them before sending them back.

Then, another note came from the jury at 3 p.m., saying the panel was unable to reach a verdict.

"We the jury would like to inform Judge Wiley that after further deliberations we can not come to an agreement on count one," the note said, according to the judge.

The jury will return on Monday to continue its work.