A judge has dropped the second-degree manslaughter charge against Daniel Penny in the death of Jordan Neely following a request from prosecutors after the jury reported being deadlocked.
Judge Maxwell Wiley urged the jury to continue considering the lesser charge of criminally negligent homicide, which pertains to Penny’s actions when he placed Neely, a homeless man, in a chokehold on a New York City subway last year.
The second-degree manslaughter charge, which was dismissed, carried a maximum sentence of 15 years. The lesser criminally negligent homicide charge has a maximum of four years, with neither crime having a minimum sentence.
Defense attorney Thomas Kenniff opposed the dismissal of the manslaughter charge, arguing that removing it could lead to a “coerced or compromised verdict” by pressuring jurors to convict on the lesser charge instead.
Before sending the jury home for the weekend, Judge Wiley commented, “What that means is you are now free to consider count two. Whether that makes any difference or not, I have no idea.”
Penny, a 25-year-old former Marine, placed Neely, 30, in a six-minute chokehold after Neely boarded a subway car behaving erratically. Police reported that witnesses said Neely appeared threatening, with Penny’s attorneys describing his behavior as “insanely threatening” at the time of the incident.
The city’s medical examiner concluded that Penny’s chokehold caused Neely’s death. Penny was initially charged with both manslaughter and criminally negligent homicide and pleaded not guilty to both.
The jury has been deliberating for over 23 hours since Tuesday, and on Friday, they sent two notes indicating they were unable to reach a unanimous decision on the manslaughter charge. Judge Wiley gave the jury an Allen charge—a set of instructions for hung juries that encourage continued deliberation despite being deadlocked.
Before sending the jury home on Friday, Wiley told them, “Jury deliberations are not intended to be easy,” while also emphasizing that “a future jury would be in no better position to reach a verdict than you would.”
Kenniff argued unsuccessfully for a mistrial twice, saying the Allen charge could exert undue pressure. Prosecutor Dafna Yoran disagreed, stating that a mistrial would be inevitable if the jury remained deadlocked. She said, “It would be a crazy result to have a hung jury just because they can’t move on to the second count.”
The jury also requested clarification on the term “reasonable person” in their instructions. Wiley responded by referring the jury to a two-part test from the jury instructions that helps define “reasonableness.”
The first part evaluates whether Penny acted recklessly and deviated from what a reasonable person would do while knowing the risks involved. The second part examines whether Penny genuinely believed his actions were justified given his knowledge of the circumstances at the time.
Before the jury re-entered the courtroom Friday, Wiley mentioned People v. Goetz, a famous New York trial from 1984 involving Bernhard Goetz, who shot four teenagers on a New York subway after they allegedly attempted to rob him.
Goetz was convicted of carrying an unlicensed firearm but acquitted on the more serious charges. This case sparked a nationwide debate about crime, self-defense, and race, themes that remain relevant to the Penny case decades later.
