By Molly Crane-Newman
New York Daily News
(New York Daily News) — Manhattan prosecutors Friday moved to drop the manslaughter charge against Daniel Penny after a deadlocked jury said they couldn’t agree on it — paving the way for the panel to consider the lesser charge of criminally negligent homicide in the chokehold death of Jordan Neely aboard a Manhattan subway.
The development came after jurors twice said they could not unanimously decide Penny’s guilt or innocence on the top count of manslaughter. They were not permitted to consider the lesser offense without doing so.
Over objections from the defense, Justice Maxwell Wiley granted the prosecution’s motion to dismiss the top charge — functionally allowing the jury to consider whether Penny is guilty of criminally negligent homicide.
“Whether that makes any difference or not, I have no idea,” the judge said.
The judge then sent the jurors home early for the weekend, advising them to “think about something else for a while.”
The jury started deliberating Tuesday afternoon after hearing from more than 40 witnesses.
Earlier Friday morning, prosecutor Dafna Yoran told the judge, “It would be a crazy result to have a hung jury because they can’t move onto the second count.”
Penny’s lawyer, Thomas Kenniff, was against Wiley’s initial jury instruction to keep the jury deliberating on the manslaughter charge and asked for a mistrial, arguing the instruction could be coercive and saying the case was factually uncomplicated. Wiley disagreed and shot down the request.
(Please click onto the image of the cat to hear Classical Music)
In their second note, after revealing their impasse, jurors asked for further clarification about determining whether a person reasonably believes physical force to be necessary.
“The two part test mentions the term ‘reasonable person.’ We would like to better understand the term ‘reasonable person.’ Is it possible for the judge to provide further clarification or elaborate?” the note read.
Wiley said that the term was subjective and related to what Penny actually believed and whether a reasonable person in the same circumstances would have believed the same.
Penny, 26, a former Marine who served from 2017 to 2021, faces a maximum sentence of up to 15 years if convicted of manslaughter, four years for criminally negligent homicide, and no minimum term.
The incident occurred aboard an uptown F train on May 1, 2023, after Neely, 30, boarded at Second Ave. Witnesses testified that he began screaming about being hungry and not caring about whether he died or went to jail when Penny took him down from behind in a chokehold.
Prosecutors say Penny’s actions were reasonable when he sought to protect passengers on the moving train but became criminal when he continued choking him for nearly six minutes after it had stopped at Broadway-Lafayette St. and passengers fled to the platform.
His lawyers have argued he justifiably took Neely down on the train after the homeless man acted hostile toward passengers. They have also challenged the city medical examiner’s determination that he died as a result of the chokehold and not unrelated mental and physical health issues.
©2024 New York Daily News. Visit at nydailynews.com. Distributed by Tribune Content Agency, LLC.