Defense attorneys for Daniel Penny, the U.S. Marine veteran who placed Jordan Neely in a fatal chokehold aboard a New York City subway, have asked a judge to dismiss the case.
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, has 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.
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In a court filing last week, Penny's attorneys highlight 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.
A mother and son on the F train took cover behind a stroller and a high school student claimed Neely said “someone is going to die today," according to the court documents.
"We are confident that the evidence presented to the grand jury was legally deficient. The passengers on that train overwhelmingly support Danny and his account of the incident. Mr. Neely was a threat and people feared for their lives," Penny's lawyers said in a statement obtained by NBC News.
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The Manhattan District Attorney’s Office declined to comment, but a spokesperson said the office would response in a court filing.
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.
