Motion to dismiss Daniel Penny manslaughter case denied

Link to full story

Upon boarding a New York City subway, no one would expect to witness someone taking their last breaths at the hands of another passenger. Yet, that is exactly what happened on a northbound F train on May 1, 2023, when passengers witnessed the death of Jordan Neely as he was restricted in a chokehold by Daniel Penny, a U.S. Marine veteran who grew up in West Islip and graduated from West Islip High School.

Penny has since been arrested for manslaughter in the second degree, and criminally negligent homicide. A New York judge denied Penny’s motion to dismiss the case on Wednesday, Jan. 17.

Neely, a former Michael Jackson impersonator who had been struggling with homelessness and mental illness, shouted and begged for money upon entering the subway train. Witnesses have varying accounts, with some testifying that Neely’s rants were threatening and causing fear, while others describing the situation as much less panic-inducing. With the help of two passengers, Daniel Penny pinned Neely to the ground and held him in a chokehold, maintaining his grip for approximately six minutes, continuing even after Neely stopped moving. Multiple bystanders captured the incident on video.

With the medical examiner ruling the death a homicide, with a cause of death detailed as “compression of neck (chokehold),” Penny was arrested for manslaughter in the second degree, a class C felony. A grand jury indicted Penny for one charge of criminally negligent homicide, a class E felony, in early June. The specific charges were unveiled during an arraignment on June 28, where Penny pleaded not guilty to the revised charges.

Prosecutors would have to prove Penny was aware of the risk of serious harm and recklessly caused Neely’s death to get a manslaughter conviction. A jury would have to find that Penny unjustly put Neely at risk of death, but failed to perceive that risk, to convict Penny of the lesser criminally negligent homicide charge. The maximum prison sentence is 15 years for involuntary manslaughter and four years for the homicide charge.

The death of Neely has sparked political and racial tensions and controversy about vigilantism and treatment of the homeless and mentally ill. Neely is black, and Penny is white.

“No one on that train asked Jordan, ‘What’s wrong? How can I help you?’” stated Donte Mills, an attorney for Neely’s family, during a press conference. “He was choked to death instead.”

Across the nation, the case has received polarizing responses. Some have hailed Penny, who served in the Marines for four years and was discharged in 2021, as a courageous hero. A campaign to raise money for his legal defense on the Christian crowdfunding site GiveSendGo has amassed over $3 million. In a May 12, 2023 tweet, Gov. Ron Desantis of Florida urged the public to donate to the fund, stating, “We stand with Good Samaritans like Daniel Penny. Let’s show this Marine... America’s got his back.”

Some politicians closer to home have taken an opposing stance, regarding Penny as a murderer and vigilante killer. In a May 3, 2023 tweet, New York Rep. Alexandria Ocasio-Cortez stated, “Jordan Neely was murdered. But bc Jordan was houseless and crying for food in a time when the city is raising rents and stripping services to militarize itself while many in power demonize the poor, the murderer gets protected w/passive headlines + no charges. It’s disgusting.”

On Wednesday, Jan. 17, crowds gathered outside a Manhattan courthouse as Penny once again faced a judge. Penny and his lawyers filed a motion to dismiss the case on the grounds that petrified passengers testified that Neely was threatening until Penny intervened. However, the attempt to get the judge to overrule the Grand Jury’s indictment was unsuccessful. The motion to dismiss the case was denied.

Penny’s defense requested additional testing to determine the level of synthetic cannabinoids in Neely’s blood during the Jan. 17 convening. Attorney Donte Mills addressed the request during a brief press conference outside the courthouse.

“Whether or not he had marijuana in his system, it doesn’t make a difference,” explained Mills. “He was killed for no reason… It’s a win for Jordan’s family.”

Penny’s case will return to court on March 20, and a tentative trial looms ahead.