Daniel Penny trial: Opening statement set for Friday in New York subway chokehold death

NEW YORK – Opening statements are scheduled for Friday in the criminal trial of Daniel Penny, the U.S. Marine Corps veteran accused of putting homeless man Jordan Neely in a fatal chokehold on a New York subway last year.

Penny, 25, is accused of “negligently causing the death” of Neely, a 30-year-old former street performer who, according to testimony, was behaving erratically on the train on May 1, 2023 when Penny held him.

Penny, who served four years in the Marines before being discharged in 2021, is free on $100,000 bond. The process is expected to take between four and six weeks.

The jury consists of seven women and five men, including four people of color.

The Manhattan district attorney's office filed a motion accusing the defense of excluding several potential jurors based on their race.

He faces up to 15 years in prison if convicted of second-degree manslaughter and up to four years in prison if convicted of involuntary manslaughter.

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The case stems from a May 1, 2023, altercation on the F subway in Manhattan in which witnesses said Neely yelled and demanded money as Penny approached him.

According to prosecutors, Penny, with the help of two other passengers, pinned Neely to the ground and held him in a chokehold for more than three minutes. Video of the incident showed Penny trying to subdue Neely by putting him in a chokehold.

Neely struggled in a chokehold for several minutes, after which he was taken to Lenox Hill Hospital and pronounced dead. The coroner's office ruled the death a homicide caused by compression of the neck.

Eleven days after the fatal incident, Penny turned herself in to the Manhattan District Attorney's Office. Family members say Neely was homeless and struggled with drug addiction and mental health issues.

Penny's lawyers have argued that the Long Island native had no intention of killing Neely, but rather just holding him long enough for police to arrive. Penny has claimed Neely screamed “I'm going to kill you” and that he was “ready to die” or go to prison for life.

Penny's attorney, Steven Raiser, said the defense plans to argue other possible causes for Neely's death, including high levels of the synthetic cannabinoid K2 found in his body.

“What the jury will also know is that he [Neely] has high levels of K2, a very, very dangerous drug that has in the past caused people to act violently, erratically, suicidally, whatever,” Penny's attorney Thomas Kenniff said during an appearance on Good Day New York .

Meanwhile, prosecutors have argued in their court filings that Penny's actions were reckless and negligent, even if he had no intention of killing Neely. Manhattan District Attorney Alvin Bragg's office declined to comment before the trial.

“The government has failed Mr. Neely,” Raiser said on GDNY. “Because he was having mental breakdowns in the subway system, high up on K2, because he was trying to self-medicate after a long, long history of committing crimes with violence,” Raiser said.

The dramatic scene sparked heated debate and division between those who believed Penny had acted heroically and others who believed he had shown excessive force.

Jordan Neely is pictured before seeing the Michael Jackson film “This is It” outside the Regal Cinemas in Times Square in 2009. (Andrew Savulich/New York Daily News/Tribune News Service via Getty Images)

Neely had made money imitating Michael Jackson in the past, but was homeless for a time.

Street artists who knew Neely described him as a kind and talented impressionist who fell into depression following the death of his mother in 2007. According to news reports at the time, Christie Neely was strangled. Neely, who was 14 when she died, testified in the murder trial of his mother's boyfriend.

Neely had a criminal record that included 44 previous arrests – many of them subway-related, including disorderly conduct, conduct, assault and fare evasion.

The Associated Press contributed to this report.