Judge drops top charge in “Daniel Penny” trial

A judge dismissed the most serious charge against Daniel Penny, a former US Marine on trial for the death of Jordan Neely, a homeless man who he was restraining on a New York City subway car, after jurors were unable to agree on it.

After jurors emerged twice during their third day of deliberations to say they were divided on the charge of manslaughter in the second degree, Penny’s attorney said a mistrial should be declared.

Instead, the judge dismissed the charge and said the jury could proceed to considering a lesser count of criminally negligent homicide. The judge then dismissed jurors for the day.

Penny did not show any emotion when the dismissal of the top count was announced. Neely’s father bowed his head and looked at the floor. Both he and Neely’s uncle said they did not want to comment until the trial was over.

Outside the courthouse, Hawk Newsome, a co-founder of Black Lives Matter of Greater New York, criticized the dropping of the manslaughter charge.

"If you look at the facts of this case, then you understand that Daniel Penny is guilty. But today, white supremacy got another victory," said Newsome.

Penny, 26, has said he never intended to kill Neely, a 30-year-old with a history of mental illness, during their encounter on an uptown train on May 1, 2023.

Penny did not testify during the trial, which began in October. 

Prosecutors from the Manhattan District Attorney's Office did not dispute that Neely was loud, angry and threatening as he boarded the train, shouting that he was hungry, thirsty and wanted to be sent back to jail.

But they told jurors that Penny, who grabbed Neely from behind with an arm around Neely's neck and brought him to the floor, used deadly physical force without justification and for far longer than necessary.

Penny's defense lawyers told jurors that Penny, a student on his way to a gym, acted out of alarm that Neely might hurt a woman and a child he was approaching. Neely was unarmed.