Subway chokehold trial: First defense witnesses describe former LI Marine Daniel Penny as compassionate, empathetic

The first two witnesses called by defense attorneys for Daniel Penny, the West Islip native accused of fatally choking subway performer Jordan Neely on an uptown F train in Manhattan last year, described the former Marine on Monday as a calm and peaceful person.

Penny’s sister, Jacqueline Penny, and a childhood friend, Alexandra Fay, described their hometown as a small community where residents bond over sports, schools, boating and the beach. They told the jury that the defendant had a reputation for honesty, compassion and empathy among his family and friends in West Islip.

"I would say he is a calm and peaceful person," Fay testified in Manhattan Criminal Court on Monday afternoon. "I would say he has that effect on others, including me."

Fay and Jacqueline Penny served as character witnesses for Penny after Manhattan prosecutors rested following three days of testimony from Dr. Cynthia Harris, a city medical examiner who concluded that Neely died because Penny held him too long in a chokehold for several minutes on an F train in May 2023.

Jacqueline Penny, an accountant who now lives in Miami, testified under questioning from defense attorney Thomas Kenniff that she was "a little" surprised that Penny, who is a year younger than her, enlisted in the Marines. Penny, she added, was always patriotic and wanted to follow in the footsteps of older relatives.

Their childhood was not always idyllic, Jacqueline Penny said. Their parents’ divorce was difficult for her, Penny and their other siblings.

Prosecutors charge that Penny, a Marine Corps veteran formerly of Long Island trained in nonlethal restraints, seized Neely from behind, at first to keep him from harming other passengers on the train, but, they said, he held on too long — more than five minutes — which he knew from the military could injure or kill the man.

Penny, now 26, has pleaded not guilty to manslaughter and criminally negligent homicide. If convicted, he faces up to 15 years in prison.

Witnesses say Penny put Neely, a 30-year-old homeless man who suffered from mental health issues, into a chokehold after Neely rushed into an uptown F train at the Second Avenue station, threw his jacket to the ground and made verbal threats to passengers. Penny’s attorneys said he was trying to protect himself and other passengers.

Earlier in the day, during the cross-examination of Harris, defense attorney Stephen Raiser challenged the medical examiner’s conclusion that Penny’s chokehold caused the death of Neely, a Michael Jackson imitator.

Raiser repeatedly tried to link Neely’s death to sickle cell trait and Neely’s use of K2, a synthetic cannabinoid linked to cardiac problems, psychosis and violent behavior.

But Harris, who said on Friday that pressure from Penny’s chokehold caused Neely’s tongue and other soft tissue in his neck to move to the back of his throat, causing him to suffocate, stood by her earlier testimony.

"In my opinion, both the airway and the jugular veins were compromised," Harris testified. The Office of the Chief Medical Examiner, where Harris works, ruled that Neely’s death was a homicide caused by asphyxia.

Harris also rejected Raiser’s suggestions that Penny had not applied sufficient pressure to Neely’s neck to cause his death.

Harris, who first took the stand on Thursday, was the 34th and last witness called by Manhattan prosecutors in the trial of Penny.

Harris said while it was possible that a person could die from a sickle cell crisis after overexertion because red blood cells were not getting enough oxygen, she said such deaths are extremely rare. She said sickle cell trait has been diagnosed even in elite athletes and that the body compensates by breathing heavily and taking in more oxygen.

Raiser also suggested that Neely may have had heart problems because of his use of K2, which can reduce the blood supply to the heart. Harris said the autopsy cannot show how much K2 Neely might have consumed but acknowledged that "it is likely that he was acutely intoxicated."

But she said fatalities linked to K2 use are extremely rare and pushed back on Raiser’s suggestion that Neely suffered from an enlarged heart.

"In my opinion, Mr. Neely’s heart was within normal limits," she said.

Harris acknowledged that she ruled on Neely’s cause of death before a toxicology report was released. She said it was clear from video of the incident and from the autopsy that Neely had suffered brain damage due to a lack of oxygen.