The death of a man on trial in a New York City subway went “far too far,” prosecutors say in their opening statement

Daniel Penny went “way too far” when he put Jordan Neely in a chokehold on a New York subway until he died last year, a Manhattan prosecutor told jurors Friday during opening arguments in Penny's involuntary manslaughter trial.

Assistant District Attorney Dafna Yoran said that while Penny's original intent to protect other passengers from someone he perceived as a threat was laudable, that praise disappeared when he continued to hold Neely after he lost consciousness and after the others Passengers left the train safely by car.

“A chokehold is only allowed when it is absolutely necessary and only for as long as it is absolutely necessary,” Yoran told the jury. “And here the defendant went far too far.”

Penny, 26, is charged with manslaughter and involuntary manslaughter on May 1, 2023. That was the murder of Neely, 30, a homeless black man with a history of mental illness who sometimes entertained subway riders as a Michael Jackson impersonator.

Yoran said when Neely got on the train that day, he was homeless, suffering from mental illness and high on synthetic cannabinoids. He talked about being hungry and thirsty and threatened to hurt people and want to go back to prison, which scared people on the train, Yoran said.

But she said Penny was “unnecessarily reckless” when he grabbed Neely from behind “without hesitation” and brought him to the floor of a dirty uptown F train, where Neely would take his final breaths. Penny appeared indifferent to Neely and “didn’t recognize his humanity,” she said.

Penny's attorney, Thomas Kenniff, said in his opening statement that Penny, a former Marine, did not intend to kill Neely when he placed him in what Kenniff described as “a variation of a non-lethal chokehold.”

Kenniff told jurors that the evidence would show Penny had no intention of hurting Neely and that he made “every conscious effort” to avoid killing him. The defense also challenged the city's chief medical examiner's determination that Neely died from compression of his neck resulting from the chokehold.

According to Kenniff, Neely walked through the subway car, lunged at passengers and approached a woman who was protecting her son behind a stroller. He said Penny heard Neely say, “I'm going to kill,” which prompted him to act.

Kenniff said Penny just wanted to hold Neely until police arrived. Penny's behavior “doesn't have to make him a hero,” Kenniff said. “But it doesn’t make him a murderer.”

Yoran told jurors that although Penny was trained in first aid, he did not check Neely's pulse or breathing while he waited for police. He also didn't try to revive Neely, Yoran said.

There was great interest in Penny's trial, which led to disagreement as some denounced him as a vigilante and others praised him as a hero. The case has also raised concerns about race as a factor in Neely's death. Penny is white. Neely was black.

Meanwhile, homelessness and mental illness advocates have criticized the city for not doing enough to help people like Neely, who have experienced both.

Protests were briefly heard in the courtroom before opening statements Friday, prompting Judge Maxwell Wiley to add special instructions to his normal jury instructions requiring jurors to ignore any noise they hear outside.

The 12-member jury, selected after nearly two weeks of jury selection, remains anonymous. Seven of the twelve jurors are women and eight are white.

Yoran accused Penny's lawyers this week of striking jurors of color. The trial is expected to last six weeks.

In addition to opening statements, jurors Friday heard from three police officers who responded to the subway car. They described life-saving measures that officers and other first responders took to save Neely, including administering Narcan and performing chest compressions.

Kenniff said jurors would also hear from subway riders during the trial who feared for their lives.

Both sides plan to use bystander videos from that day to present their case to jurors, with Yoran calling a recording of a train passenger “the most important piece of evidence in this trial.”

The video, she said, will make clear that Penny approached Neely within 30 seconds of Neely getting on the train and that he continued to hold him even after two men helped him pin Neely to the ground. At that point, Yoran said, Neely, who was six feet tall and weighed about 150 pounds at the time of his death, was outnumbered and “a chokehold was not necessary,” but Penny didn't back down.

But Kenniff said the videos don't tell the whole story. He said when people started recording, Penny struggled to hold Neely back for two minutes.