Judge won't dismiss subway chokehold death case against U.S. Marine vet Daniel Penny

A judge has denied a motion by attorneys for Daniel Penny, the U.S. Marine veteran who placed Jordan Neely in a deadly chokehold aboard a New York City subway last year, to dismiss the case.

The decision came in court on Wednesday. The judge ordered Penny back to court in late March. His trial is tentatively expected to start in the fall.

Penny's lawyers Steven Raiser and Thomas Kenniff said they disagree with the judge's decision.

“While we disagree with the Court’s decision not to dismiss the indictment, we understand that the legal threshold to continue even an ill-conceived prosecution is very low," Raiser and Kenniff said in a statement. "We are confident that a jury, aware of Danny’s actions in putting aside his own safety to protect the lives of his fellow riders, will deliver a just verdict. Danny is grateful for the continued prayers and support through this difficult process.”

Penny, 24, has pleaded not guilty to second-degree manslaughter and criminally negligent homicide in the May 1 death of Neely, a former Michael Jackson impersonator who was shouting and begging for money on the Manhattan train, according to witnesses.

Penny pinned him to the ground with the help of two other passengers and held him in a chokehold for more than three minutes. Neely, 30, lost consciousness during the struggle.

The chokehold death, which was caught on bystander video, prompted fierce debate, with some praising Penny as a good Samaritan and others accusing him of racist vigilantism. Penny is white and Neely was Black.

In an October court filing, Penny's attorneys highlighted testimony from grand jury witnesses who were on the May 1 train. One of those riders, the motion reads, was afraid he “was going to die” when Neely approached.

To get a manslaughter conviction, which carries a prison sentence of up to 15 years, prosecutors would have to prove Penny recklessly caused Neely's death while being aware of the risk of serious harm.

A conviction for criminally negligent homicide would require the jury to find that Penny unjustifiably put Neely at risk of death, but failed to perceive that risk. The maximum penalty would be four years in prison.

Penny, who served in the Marines for four years and was discharged in 2021, has said he acted to protect himself and others from Neely. In a video statement released by his lawyers weeks after the incident, Penny claimed Neely repeatedly said “I’m gonna kill you,” and that he was ready to die or spend his life in prison.

Neely's family members and their supporters have said Neely, who struggled with mental illness and homelessness, was crying out for help and was met with violence.