Marine Surrenders to Face Charges in Subway Killing

NEW YORK — Daniel Penny, the Marine veteran who choked and killed Jordan Neely, a homeless man, on the subway last week, surrendered Friday to face a charge of second-degree manslaughter.

Penny, 24, dressed in a dark gray suit, walked through the front doors of the Police Department’s 5th Precinct at around 8 a.m. Hands cuffed behind his back, Penny was led out of the precinct at 10:38 a.m. He was put into a waiting black police car to be taken to Manhattan Criminal Court, where he was to be arraigned later Friday.

Penny encountered Neely, 30, on an F train on May 1 and held him in a chokehold for several minutes, killing him. Witnesses said Neely, who had a history of mental illness, was acting in a “hostile and erratic manner” toward other passengers on the train, according to police, but there has been no indication that he physically attacked anyone before Penny began choking him.

The struggle was captured in a four-minute video that showed Penny continuing to choke Neely for an additional 50 seconds after Neely had stopped moving. Police interviewed Penny that night, but initially released him without charging him.

A week and a half later, on Thursday, the Manhattan district attorney’s office confirmed that it planned to charge Penny in the killing.

Penny’s lawyers, Steven M. Raiser and Thomas A. Kenniff, said in a statement that they were “confident that once all the facts and circumstances surrounding this tragic incident are brought to bear, Mr. Penny will be fully absolved of any wrongdoing.”

In the days after Neely’s killing, many city leaders, politicians and advocates for New Yorkers struggling with mental illness and homelessness had called for Penny’s immediate arrest. They said Neely’s killing highlighted the city’s failure to care for its most vulnerable and marginalized residents.

Some Democratic politicians had criticized Mayor Eric Adams for his muted initial response to the killing. Days later, on Wednesday, the mayor said in a speech that Neely’s “life mattered” and that his death was a “tragedy that never should have happened.”

In a statement Thursday, after the district attorney’s office said it planned to charge Penny, Adams said, “I have the utmost faith in the judicial process, and now justice can move forward against Daniel Penny.”

Neely, who had been a subway performer known for his impersonation of Michael Jackson but in recent years appears to have experienced severe mental illness, had boarded a northbound F train at the Second Avenue station in the afternoon of May 1, said Juan Alberto Vazquez, a freelance journalist who recorded the video that captured what happened inside the subway car.

Vazquez recalled that Neely had said “‘I don’t mind going to jail and getting life in prison,’” and “‘I’m ready to die.’”

By the time the train stopped at Broadway-Lafayette station, where it remained, Penny had pinned Neely down on the ground in a chokehold, as two other men grabbed his arms and legs. Vazquez said he had not seen Penny grab Neely but that he had heard a thump and had then seen both men on the floor.

Police said they had received a call at 2:27 p.m. about a fight on an F train at the station.

At around 2:29 p.m. another passenger can be heard in the video saying that his wife had been in the military and knew about chokeholds, and warning the men that they should make sure Neely had not defecated on himself.

“You don’t want to catch a murder charge,” he says.

Neely was taken to Lenox Health hospital in Greenwich Village, where he was pronounced dead. Two days later, the medical examiner’s office ruled Neely’s death a homicide and said the cause of death was compression of his neck.

As news of Penny’s upcoming charges reverberated Thursday, Marc Morial, the National Urban League president and CEO, said in a statement that the district attorney’s decision to charge him “reminds us that a measured response to this shocking episode was necessary.”

“While not always swift, a methodical approach to justice in this case bends towards the fair application of the rule of law,” he said.

Joshua Steinglass, a veteran homicide prosecutor who helped lead the trial team in the case against former President Donald Trump’s family business, is leading the investigation, according to the district attorney’s office.

Second-degree manslaughter, also known as reckless homicide, will require prosecutors to prove Penny caused Neely’s death and did so recklessly, meaning that he knew that the chokehold could kill Neely and unreasonably chose to apply it anyway. If Penny is convicted, he could spend up to 15 years in prison.

Penny’s lawyers will most likely argue that the force he used against Neely was justified given the harm that he believed Neely represented to Penny, other passengers or both.

Prosecutors will have to prove that Penny used deadly force without having believed that Neely was also using deadly force or was about to.

Many activists and politicians had called for Penny to be charged with murder. But that was an unlikely scenario. To win a murder conviction, prosecutors would most likely have had to show that Penny had intended to cause Neely’s death or acted with “depraved indifference,” which might have been a difficult standard to meet under the circumstances.

The Manhattan district attorney office’s confirmation that it planned to charge Penny suggested it had determined it had enough evidence to arrange his surrender. However, the office will still have to secure a grand jury indictment to proceed with a felony case against Penny, who grew up on Long Island, New York, and has no criminal record.

This article originally appeared in The New York Times .