Trial of Marine veteran from West Islip accused in fatal subway chokehold to last six weeks, judge says

A Manhattan Supreme Court judge laid out a six-week schedule on Tuesday for the trial of a Long Island Marine veteran charged with putting a homeless man in a fatal chokehold on a New York City subway train last year.

Daniel Penny, 25, formerly of West Islip, faces charges of manslaughter in the second degree and criminally negligent homicide for killing homeless subway busker Jordan Neely, 30, on the F train on May 1, 2023.

Jury selection began Monday and is expected to last for the rest of the week.

The trial has been a flashpoint in the country’s culture war. Some have painted Penny as a hero who protected the train passengers from a potentially dangerous man.

A page on an online crowdfunding website raised more than $3 million for Penny's legal defense and Nassau County Executive Bruce Blakeman held a rally outside the Manhattan courthouse on the day of Penny’s arraignment.

Others said the Marine veteran, who is white, acted recklessly, assuming Neely, who was Black, was more of a threat than he was.

The Rev. Al Sharpton told mourners at Neely’s funeral, "When they choked Jordan Neely, they put their arm around all of us."

How safe jurors feel on the city’s subway may be a crucial component of the case.

Several witnesses said Neely acted in a threatening manner and yelled, "Someone is going to die today."

No one on the train said he had physically attacked them or threatened them specifically.

Penny told investigators that he used a chokehold he learned in the military to subdue Neely and prevent him from harming the other passengers.

According to the Manhattan District Attorney’s  Office, Penny kept Neely in the hold for more than six minutes, which he knew or should have known would kill the homeless man.

"One of the things that I would expect to be part of the questioning of the jury is what their feelings are surrounding the subways and crime on the subways," New York Law professor Anna Cominsky, who heads the school’s Criminal Defense Clinic, said. "Because both sides are going to want to figure out if anyone has strong feelings one way or another, without having heard any of the evidence in the case."

Defense lawyer Thomas Kenniff argued Tuesday that witnesses believed his client acted as a "good Samaritan" and should be allowed to elicit that testimony at trial.

Manhattan prosecutor Dafna Yoran asked Supreme Court Justice Maxwell Wiley to preclude such testimony because it is opinion, not fact.

The judge is expected to decide on the issue Wednesday.

Defense attorneys also asked the judge to rephrase a jury instruction that cautions, "If you made an opinion be prepared and willing to change your mind."

"Their being willing to change their minds is not good enough if their starting point is that Danny is guilty," defense attorney Steven Raiser said.

Meanwhile, the court this week will vet hundreds of New Yorkers, many of whom have followed the case in the news, for the jury.

The judge faces the daunting task of picking 12 Manhattan residents who can put aside their business and personal life through Election Day, Thanksgiving and the weeks leading up to Christmas.

Opening arguments in the case are expected next week. No testimony will be heard on Wednesdays and around the federal holidays.

Wiley said deliberations are expected to begin the week of Dec. 9.