Daniel Penny went “way too far” when he put Jordan Neely in a chokehold on a New York City subway train last year until he died, a Manhattan prosecutor told jurors Friday during opening statements in Penny’s manslaughter trial.
Assistant District Attorney Dafna Yoran said that while Penny’s initial intent to protect other passengers from someone he perceived as a threat was laudable, that praise vanished when he continued to hold onto Neely after he had lost consciousness and after the other passengers had safely exited the train car.
“A chokehold is only permitted when it’s absolutely necessary and only for as long as it’s absolutely necessary,” Yoran told jurors. “And here, the defendant went way too far.”
Penny, 26, is charged with manslaughter and criminally negligent homicide in the May 1, 2023, killing of Neely, 30, a homeless Black man who had a history of mental illness and sometimes entertained subway riders as a Michael Jackson impersonator.
Yoran said that when Neely boarded the train that day, he was homeless, suffering from mental illness and high on synthetic cannabinoids. He talked about being hungry, thirsty and made threats about hurting people and wanting to go back to jail, which frightened 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 last breaths. Penny showed indifference toward 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 put him in what Kenniff described as “a variation of a nonlethal chokehold.”
Kenniff told jurors that the evidence will show Penny did not intend to hurt Neely and that he took “every conscious effort” to avoid killing him. The defense attorney also challenged the city’s chief medical examiner’s finding that Neely died from compression to his neck as a result of the chokehold.
According to Kenniff, Neely had moved 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 will kill,” which prompted him to act.
Kenniff said Penny wanted only to detain Neely until police arrived. Penny’s behavior “doesn’t have to make him a hero,” Kenniff said. “But it doesn’t make him a killer.”
Yoran told jurors that although Penny was trained in first aid, he did not check Neely’s pulse or breathing as he waited for police. He also did not try to revive Neely, Yoran said.
There has been high interest in Penny’s trial, which has become divisive as some denounce him as a vigilante and others laud 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, advocates for people experiencing homelessness and mental illness have criticized the city for not doing enough to help people like Neely, who had a history of both.
Before opening statements Friday, protests outside could briefly be heard inside the courtroom, leading Judge Maxwell Wiley to add to his normal jury instructions a special directive that jurors ignore any noise they hear outside.
The 12-member jury, picked after nearly two weeks of jury selection, will remain anonymous. Seven of the 12 jurors are women, and eight are white.
Yoran accused Penny’s attorneys this week of striking jurors of color. The trial is expected to last six weeks.
In addition to opening statements, jurors on Friday heard from three police officers who had responded to the subway car. They described life-saving measures officers and other first responders took to try to save Neely, including the administering of Narcan and performing chest compressions.
Kenniff said jurors also would hear during the trial from subway riders who had feared for their lives.
Both sides intend to use bystander video from that day to make their case to jurors, with Yoran calling one recording by a train passenger “the most critical piece of evidence at this trial.”
The video, she said, will make clear that Penny approached Neely within 30 seconds of Neely boarding the train and that he continued to restrain him even after two men helped him pin Neely to the ground. At that point, Yoran said, Neely, who was 6 foot 1 and weighed about 150 pounds at the time of his death, was outnumbered and “a chokehold was not necessary,” but Penny did not relent.
But Kenniff said that the videos would not tell the entire story. He said that by the time people began recording, Penny had been struggling to restrain Neely for two minutes.
