Manhattan prosecutors were compelled to take the significant and unexpected step of dismissing the top charge against Daniel Penny on Friday after the jury twice reported that they were unable to reach a unanimous verdict in the high-profile subway chokehold case.
The stalemate centered around the charge of second-degree manslaughter, which led to heightened tension and a series of intense exchanges in the courtroom. Ultimately, Manhattan Supreme Court Justice Maxwell Wiley made the decision to drop the top count, a move that underscored the challenges jurors faced in reaching a consensus.
“I’ll take a chance and grant the people’s application,” Justice Wiley remarked, approving the prosecution’s request to dismiss the manslaughter charge. With that decision, he instructed the jury to reconvene on Monday to focus their deliberations on a lesser charge: criminally negligent homicide. This charge, while still serious, carries a lighter sentence compared to manslaughter.
Acknowledging the complexity of the situation, Wiley addressed the jurors with a touch of wry humor, saying, “Whether that makes any difference or not, I have no idea. But I’m going to direct you to focus your deliberations on count two.” Before dismissing them for the weekend, he encouraged the jury to step away from the case momentarily, advising, “Go home and think about something else.”
The dramatic turn of events marked a pivotal moment in the closely watched case, signaling a shift in focus from the more severe manslaughter charge to the lesser count of negligent homicide as jurors prepare to resume deliberations.
The decision followed hours after the jury sent a note indicating they were unable to agree on whether to convict 26-year-old Daniel Penny of manslaughter. Penny had placed a 30-year-old homeless man in a six-minute chokehold during a May 2023 incident aboard a Manhattan F train.
Justice Wiley had previously instructed the 12-member jury that they were required to deliberate on the manslaughter charge first and reach a verdict before considering the lesser charge of criminally negligent homicide.
Deliberations in the highly contentious case began Tuesday afternoon, igniting intense debate over whether Daniel Penny was justified in restraining Jordan Neely with a chokehold after Neely boarded the subway car, shouting and frightening passengers.
To secure a conviction for manslaughter, which carries a maximum sentence of 15 years in prison, prosecutors must prove that Penny acted recklessly and caused Neely’s death. In contrast, the lesser charge of criminally negligent homicide, which carries a penalty ranging from probation to four years in prison, involves acting with “criminal negligence”—failing to recognize the risks of one’s actions but proceeding regardless.
Before the lunch break, the jury also asked Justice Wiley to clarify the legal meaning of a “reasonable person,” a key concept tied to Penny’s defense that his actions were justified under the circumstances.
To acquit Daniel Penny on the grounds of justification, the jury would need to determine whether his use of deadly force was necessary to protect himself and others on the subway. They would also need to decide if a “reasonable person” in Penny’s position would have acted in the same way. As the judge explained, the definition of a “reasonable person” was up to the jury to decide, adding, “Hope that helps.”
The jury later sent two notes indicating they were deadlocked on whether Penny had “recklessly” caused Neely’s death. In response, the judge suggested he might consider declaring a mistrial for the entire case, rather than just on the top charge, to avoid a potential “compromise verdict”—a situation New York state courts generally seek to prevent.
Assistant District Attorney Dafna Yoran expressed that it would be “a crazy result” if the case ended in a mistrial without first allowing the jury to attempt to reach a verdict on the lesser charge. She was later seen pacing in the courtroom while on her cell phone, conversing with staff from District Attorney Alvin Bragg’s office seated in the front row.
After briefly leaving the room, Yoran returned with Steven Wu, the chief of the DA’s office’s appeals bureau. Wu argued to the judge that dismissing the manslaughter charge would eliminate the possibility of a compromised verdict, where the jury might split on their decision.
Penny’s defense attorneys continued to oppose the judge’s decision to drop the top charge, criticizing it as a potential tactic to “coerce” the jury into delivering what they viewed as a “compromise” verdict.
Attorney Thomas Kenniff argued in court that the law clearly states compromised verdicts should be avoided, claiming that the judge’s decision was essentially pressuring the jury to reach such a verdict.
Despite Kenniff’s assertion that he was unaware of any case where this had been allowed, Judge Wiley sided with the prosecutors and proceeded with the decision.
The judge acknowledged that the defense had accurately stated the law, but he explained that the prosecution’s proposal would resolve the issue raised by the defense.
The dismissal of the manslaughter charge means that District Attorney Alvin Bragg’s office cannot retry Daniel Penny on that more serious charge, regardless of what the jury decides when deliberations resume on Monday.
Before sending the jury home for the weekend, Judge Wiley informed them that the manslaughter charge had been dropped, though he did not elaborate on the unusual sequence of events leading to the decision.
Both charges involve the issue of justification, but the jury can convict Penny of criminally negligent homicide if they determine he failed to recognize the risk that his chokehold could lead to the death of the homeless man and that he should have been aware of that possibility.
Penny’s defense attorneys argued that the Long Island native, an aspiring architect, was justified in using force to protect passengers from a man who, according to witnesses, shouted, “Someone’s going to die today!” and claimed he was prepared to go to jail after boarding the uptown F train.
Prosecutors, however, have emphasized that no witness testified that Neely directly threatened anyone, physically attacked anyone, or displayed a weapon. When police searched him, they only found a muffin in his pocket.
The case has sparked heated debate and raised concerns about the failures of the city’s mental health system, as Neely had reportedly disclosed his mental illness to authorities during more than a dozen previous encounters with the police.
Penny now faces up to four years in prison on the lesser charge, but it remains uncertain how severe a sentence the prosecution will seek if he is convicted.
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