NEW YORK (AP) 鈥� The judge overseeing the trial of a man a deadly chokehold on an unruly New York subway passenger dismissed the top charge in the case on Friday at prosecutors' request, allowing jurors to consider a lesser count after they deadlocked on whether Daniel Penny was guilty of manslaughter.
Judge Maxwell Wiley's decision will let jurors deliberate a charge of criminally negligent homicide, which carries a lighter punishment.
鈥淲hether that makes any difference or not, I have no idea. But I鈥檓 going to direct you to focus your deliberations on count two,鈥� he said, before directing them to 鈥済o home and think about something else.鈥�
The judge鈥檚 decision came hours after Manhattan jurors sent him a note saying they couldn't agree on a manslaughter verdict. Jurors previously were instructed that they needed to reach a verdict on the top charge before they could consider the lesser count.
Jurors have been deliberating since Tuesday on whether to convict Penny in the death of Jordan Neely. Penny, a former U.S. Marine, placed Neely in a chokehold for about six minutes on a New York City subway in May 2023 after Neely got on the car yelling and asking people for money.
Manslaughter requires proving a defendant recklessly caused another person鈥檚 death, and carries up to 15 years. Criminally negligent homicide involves engaging in serious 鈥渂lameworthy conduct鈥� while not perceiving such a risk and carries punishments ranging from probation to up to four years in prison.
Penny鈥檚 lawyers objected to the dismissal, saying it would encourage district attorneys to pursue more serious charges before grand juries, knowing they can seek dismissal of them at trial. Defense lawyer Thomas Kenniff called it a 鈥渟ignificant policy concern.鈥�
Shortly before taking a lunch break Friday, the jury also requested clarification on how they determine whether a person reasonably believes physical force to be necessary.
鈥淲e鈥檇 like to better understand the term 鈥榬easonable person,鈥欌�� their note read in part.
Wiley told the jury it was for them to decide what a reasonable person would do in the situation 鈥� whether a person would have reasonably believed Neely was about to use physical force against Penny or someone else.
The jury made several other requests to the judge since entering deliberations.
They asked to review the police and bystander video at the center of the trial. They requested a readout of a city medical examiner鈥檚 testimony. They also asked the judge to re-read the criminal definitions of and in open court and be provided with written copies of the statutes.
Neely, 30, was a sometime subway performer with a tragic life story: His mother was killed and stuffed in a suitcase when he was a teenager. His adult life spiraled into homelessness, psychiatric hospitalizations, drug abuse and criminal convictions, including for assaulting people at subway stations.
Penny, 26, went on to study architecture. He is white. Neely was Black.
Penny鈥檚 lawyers have said he was from a volatile, mentally ill man who was making alarming remarks and gestures. Prosecutors to someone he perceived as a peril, not a person.
During the monthlong trial, the heard from witnesses, police, pathologists, in chokehold techniques, as well as Penny鈥檚 and fellow Marines. Penny .
The case became a flashpoint in the nation鈥檚 debate over racial injustice and crime, as well as the city鈥檚 ongoing struggle to deal with homelessness and mental health crises in a transit system used by millions of New Yorkers every day.
There were sometimes outside the courthouse, and high-profile while prominent .
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Associated Press writer Michael Hill in Albany, New York, contributed to this report.
Philip Marcelo, The Associated Press
