A hearing in New York’s Supreme Criminal Court in Lower Manhattan will determine whether the case against Daniel Penny, a US Marine Corps veteran accused in the subway death of Jordan Neely, will be dismissed. Neely, a 30-year-old Black man experiencing homelessness, died in a Brooklyn subway car last year after Penny placed him in a chokehold. The medical examiner ruled Neely’s death a homicide caused by the depression of the neck.
The defense and prosecutors have both presented arguments about the other side’s evidence cherry-picking witness accounts to downplay or exaggerate the fear which Neely caused on the subway car. On May 1, 2023, Neely began shouting and acting erratically on the crowded subway car. Although he did not have a weapon and did not hit anyone, he caused distress among the passengers.
Several witness accounts vary because Neely was not in the direct line of vision of all passengers on the subway car. When Neely continued his outbursts, Penny, who is white, approached him from behind and placed him in a chokehold for several minutes, even after Neely had stopped resisting.
Penny pleaded not guilty after being indicted on manslaughter and criminally negligent homicide charges in June. His defense team has fought to dismiss the case by arguing that a reasonable person in their client’s position would have also felt that force was necessary to prevent Neely from harming other passengers. They also claim that there is insufficient evidence from the prosecution to warrant a trial.
If Penny does go on trial for second-degree manslaughter, a jury would have to decide whether he recklessly endangered Neely’s life disregarding the risk. Meanwhile, Penny’s lawyers have stated that he did not intend to harm Neely. Thomas Kenniff, Penny’s lawyer, notes that it is difficult to get an indictment dismissed but is confident that their case warrants a dismissal pre-trial.
However, the case against Penny may be dismissed if the judge determines there is a compelling reason to do so during the Supreme Criminal Court hearing. In the event of a trial, the decision about whether Penny engaged in reckless conduct that created an unjustifiable risk of death to Neely and consciously disregarded that risk would be up to the jury.
