On January 17, New York County Supreme Court judge Maxwell Wiley denied Daniel Penny’s motion to dismiss charges for manslaughter and negligent homicide over killing unhoused Black New Yorker Jordan Neely.
The case stems from the deadly Manhattan subway encounter on May 1, 2023, which garnered national attention after a social media video of Penny choking a limp Neely went viral. No arrest was initially made. The NYC Office of the Medical Examiner determined homicide, specifically from the “compression of the neck,” was the cause of death.
Soon protests erupted, demanding Penny’s arrest while his proponents raised more than $3 million for his legal defense fund, arguing that he defended fellow passengers from Neely, a street performer struggling with severe mental health concerns, who entered the train car and began yelling. A week later, the former marine was charged with second-degree manslaughter.
The denied motion by Penny was first reported in October and cited fellow passengers who vouched for the defendant and said they feared for their safety when Neely entered the train. Witness testimony is mixed about exactly what occurred, according to the prosecution’s response to the motion. Several recall Neely throwing his jacket on the ground. Some say he made threats, others say he didn’t. But all seem to agree that he entered the F-train yelling and did not make physical contact with a passenger or show signs of possessing a weapon.
Present at the hearing were Neely’s father Andre Zachery and the family spokesperson, attorney Donte Mills. They held a press conference outside the courthouse, declaring plans to move forward with the case as a victory.
“It’s important to know that the grand jury said Daniel Penny should face charges for killing Jordan Neely,” said Mills. “His attorneys tried to get the judge to overrule that—to say that what the grand jury said didn’t matter. But the judge didn’t do that. [He] said that Daniel Penny will face these charges.”
The news came to the relief of Mills and his law partner Lennon Edwards, who told the AmNews they were concerned about the motion to dismiss in November. At the time, the lawyers brought up the “history of these types of cases,” which they said routinely failed to yield justice.
Penny was present at the hearing and heckled by protesters when he left the courthouse. His lawyers, Steven Raiser and Thomas Kenniff, provided a statement by email about the denied motion.
“While we disagree with the Court’s decision not to dismiss the indictment, we understand that the legal threshold to continue even an ill-conceived prosecution is very low,” they wrote. “We are confident that a jury, aware of Danny’s actions in putting aside his own safety to protect the lives of his fellow riders, will deliver a just verdict. Danny is grateful for the continued prayers and support through this difficult process.”
Penny will return to court on March 20, and Wiley expects the trial to take place no sooner than fall of this year.
Tandy Lau is a Report for America corps member who writes about public safety for the Amsterdam News. Your donation to match our RFA grant helps keep him writing stories like this one; please consider making a tax-deductible gift of any amount today by visiting https://bit.ly/amnews1.