SUBWAY CHOKEHOLD CASE: Daniel Penny, charged in death of Jordan Neely, returns to court with trial just weeks away

NEW YORK (1010 WINS) – Daniel Penny, the Marine veteran charged in the chokehold death of former street performer Jordan Neely on a Manhattan subway train last year, returns to court on Thursday for a pretrial hearing, with the criminal trial just weeks away.

Penny, 25, was set to appear in Manhattan Criminal Court for the hearing, where the judge will decide what evidence from the defense and prosecution is admissible at the trial, which is scheduled to begin Oct. 21.

Penny has pleaded not guilty to charges of second-degree manslaughter and criminally negligent homicide, for which he faces 15 years and four years in prison, respectively.

Penny, who has been out on bail since his arraignment, is accused of placing Neely, 30, in a chokehold on a Queens-bound F train at the Broadway–Lafayette Street station in SoHo on May, 1, 2023.

Neely, who once performed as Michael Jackson in the subway but had in recent years struggled with mental illness and homelessness, was shouting and begging for money on the train that afternoon. Some witnesses have described Neely as “acting erratically,” while others have said he was causing a disturbance but hadn’t gotten physical with anyone. At least part of the encounter was captured on video.

“I don’t have food, I don’t have a drink, I’m fed up,” Neely shouted, according to one witness. “I don’t mind going to jail and getting life in prison. I’m ready to die.”

It was soon after that Penny pinned Neely to the ground with the help of two other passengers and held him in a chokehold for several minutes, officials have said. Neely lost consciousness during the struggle. The city medical examiner found he died from compression of the neck.

Penny and his attorneys have maintained that he acted in self-defense and acted to “protect the lives of his fellow riders.”

Neely’s family has said Penny acted as “judge, jury and executioner” and that Neely was “distressed” but that “does not mean dangerous.”

The prosecution doesn’t have to prove that Penny intended to kill Neely with a chokehold, only that he was acting in a reckless manner while knowing that such a chokehold could result in death, according to CBS News legal analyst Thane Rosenbaum.

“Penny is facing charges that focus more on recklessness and negligence than intent,” Rosenbaum said.

Prosecutors indicated in their paperwork that they have witnesses who will testify that Penny’s actions were excessive.

The defense too has said they have straphangers who will contend Penny’s actions were justified.

Penny’s lawyers are looking to argue that Neely had a psychotic episode on the train while high on synthetic cannabis. They've said his psychiatric history includes such drug abuse, as well as non-compliance with medication, and that he had a "history of volatile behavior while in treatment."

“His lawyers are seeking to introduce evidence from a forensic psychiatrist to show that the victim decedent, Neely, was under the influence of the drug K2, which can cause aggressive behavior,” Rosenbaum said.

Brooklyn-based lawyer Nicole Banecki said it’s “really important in this particular case to see if the prior history would be allowed for proving propensity to commit this act.”

“Common sense would mandate that someone who has 6,000 pages of prior medical history regarding mental health could have a certain propensity to commit a certain act and that the alleged perpetrator would be justified in acting upon it in the way he acted upon it,” Banecki said.

The trial is sure to be watched closely in the city, where transit crime and homelessness remain hot topics. The hot-button case has also gotten national attention and led to protests both supporting and condemning Penny’s actions.