Case against man accused in NYC subway chokehold death moves forward

A New York judge has declined to dismiss the case of Daniel Penny, the man charged with manslaughter for killing Jordan Neely in a chokehold onboard a subway car in May, the New York County District Attorney's Office said Wednesday morning.

Penny was charged with manslaughter after putting 30-year-old Neely, a Black man experiencing homelessness, in a chokehold from behind after Neely was acting erratically on the subway, according to witnesses.

A medical examiner ruled Neely's death a homicide caused by depression of the neck.

Defense lawyers for Penny had filed a motion for the case to be dismissed, arguing Penny did not intend to harm Neely and that several witnesses feared for their lives that day on the subway.

Now that a judge has denied the defense's motion to dismiss the case, it will continue to move forward and likely go to trial. The next conference meeting in the case is scheduled for March 20, the district attorney's office told USA TODAY on Wednesday.

On May 1, Neely started shouting on the train and threw his jacket on the floor, according to more than a dozen witnesses. He was acting erratically, witnesses said, but he did not have a weapon or hit or strike anyone.

In recent months, lawyers on each side have argued that the other side's evidence cherry-picks witness accounts in order to exaggerate or downplay the fear Neely caused on the subway car when he began yelling and saying he was ready to fight.

Witness accounts vary, lawyers say, in part because Neely was not in the direct line of vision of all passengers on the crowded subway car that morning.

Following Neely's outbursts, Penny, who is white, approached him from behind and placed him in a chokehold for several minutes, including after Neely stopped resisting.

Penny was first indicted on manslaughter and criminally negligent homicide charges in June and pleaded not guilty.

Penny's legal team fought to dismiss the case, arguing a reasonable person in their client's position onboard the subway car could have also felt force was necessary to prevent Neely from harming other passengers.

If Penny is tried in criminal court for second-degree manslaughter, a jury would be tasked with finding whether he engaged in reckless conduct that created an unjustifiable risk of death to Neely, and then consciously disregarded that risk.

Prosecutors with New York's district attorney's office also argued more evidence in the case is needed to be considered, including witness accounts from some subway passengers who said outbursts like Neely's were not out of ordinary on New York City public transportation.

The New York district attorney's office said prosecutors could not comment on pending case but shared their court filings.

Who was Jordan Neely?

Neely was experiencing homelessness and poor mental health in the months leading up to his death, lawyers for his family said last year, adding that his mental health struggles began at age 14 after his mother was killed.

In adulthood, Neely was a street and subway performer known for his impersonation of Michael Jackson, which he often did in Times Square. He grew up in a family of musicians, according to lawyers for his family. Neely's mother was a singer and his father performed in a band.

In the years leading up to his death, Neely experienced homelessness off and on, according to his family's lawyers. Sometimes, he lived with his aunt and her partner, and other times he lived at a Manhattan shelter or on the streets.

In the months and weeks leading up to his death, there were times when Neely got mental health treatment at a facility, according to lawyers for his family.

In an interview with USA TODAY, one of the family's lawyers shared how Neely's mother was strangled at age 36 in the apartment where she and her teen son lived, leading to Neely's mental health decline at 14.

The woman's boyfriend strangled her in her bedroom and when her son tried to tell his mother goodbye before leaving for school that day, her murderer told him his mother was asleep and not to bother her, Lennon Edwards, a lawyer for Neely's family, told USA TODAY last year.

When 14-year-old Neely returned home that afternoon, he learned the man had stuffed his mother's body in a suitcase and threw it onto a highway in the Bronx.

"That's the kind of trauma that can cause anyone to unravel," Edwards said. "This is a family that's extremely burdened."

What did Daniel Penny do?

More than a dozen witnesses have given varying accounts of what happened onboard the Manhattan-bound F train in the moments leading to Neely's death.

According to bystanders, Neely had been yelling about how hungry and tired he was, saying, "I don’t have food, I don’t have a drink, I’m fed up, I don’t mind going to jail and getting life in prison. I’m ready to die," in the moments before Penny held him in a chokehold for six minutes.

Video captured by a freelance journalist who was also riding the subway shows Penny with his arms wrapped around Neely's neck and his legs wrapped around the man's waist and thighs from behind.

After a few minutes, Penny releases Neely from his grasp and he lies motionless on the floor of the subway car, which is stopped at the Broadway-Lafayette MTA station, the video shows.

Police have said they responded the afternoon of May 1 to a 911 call about a "physical fight" inside the station and when they arrived, they found Neely unconscious and unresponsive.

Penny was questioned by police in the immediate aftermath of Neely's death but was released without charges. Over a week later, Penny turned himself in to authorities the morning after prosecutors announced he would be charged with manslaughter.

Prosecutors file motion to take more evidence to trial

District attorneys said in court filings that the large number of passenger witnesses had varying accounts of what happened on board the subway car.

"Witnesses differ in what they were able to see and hear at various times during the encounter as well as in their own subjective assessment of the level of danger posed by Mr. Neely that day," prosecutors wrote.

Prosecutors have argued evidence provided by the defense omitted "accounts that undermine the notion of rampant and universal panic."

In court filings, prosecutors point to one such account from a witness who told investigators, “For me, it was like another day typically in New York. That’s what I’m used to seeing."

Prosecutors also argue that not a single witness said that Neely came into physical contact with any individual until the defendant put him in a chokehold that would turn lethal.