Former Marine Daniel Penny, who placed Jordan Neely in a deadly chokehold aboard a Manhattan subway train last year, lost his bid Wednesday to dismiss the charges against him.
Manhattan Supreme Court Judge Maxwell Wiley denied Penny’s motion to dismiss in a hearing Wednesday morning. The judge said he needed more time to decide on another defense motion to suppress search warrant evidence.
Penny, who’s charged with manslaughter and criminally negligent homicide, isn’t expected to to go to trial until at least this fall.
A small group of protesters chased Penny as he got into a car to leave the courthouse Wednesday, briefly blocking his vehicle at one point as they shouted at him.
“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,” Kenny’s lawyers, Steven Raiser and Thomas Kenniff, said in a statement Wednesday. “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.”
Penny, who is white, put Neely — a Black 30-year-old Michael Jackson impersonator with a history of mental illness and multiple arrests — into a fatal chokehold on an uptown F train on May 1, 2023.
“This was a win today, a big win,” said Donte Mills, a lawyer for Neely’s father, Andre Zachary. “The judge said Daniel Penny will face these charges. … It’s a win for Jordan’s family. It’s a win for the people who stood on that subway platform and stopped the trains from moving [during a protest].”
When asked about a mention in court about tests to determine if Neely had synthetic marijuana in his system, Mills said, “They’re looking for an excuse. I assure you Daniel Penny did not know what was in Jordan’s system when he decided to choke him to death when Jordan was not fighting back.”
Zachary did not speak to reporters Wednesday.
Chilling video shows Penny, 24, keeping Neely in a chokehold for more than two minutes as he slowly kicked his legs and finally stopped moving, while two other men helped restrain him.
Neely entered the train at the Second Ave. station ranting, “I don’t have food, I don’t have a drink, I’m fed up… I don’t mind if I go to jail and [get] life in prison … I’m ready to die,” according to freelance journalist and fellow straphanger Albert Vasquez. According to police, Neely yelled and threw garbage at commuters.
Penny is accused of coming up behind him and putting him in a chokehold.
The NYPD’s decision to initially release Penny after being questioned sparked a firestorm of criticism across the city and calls for racial justice, and Neely’s death highlighted the repeated failures of the city’s mental health services.
In a recorded interview released by his lawyers last year, Penny said he was “scared” and felt “intimidated” by Neely.
“I was praying that the police would come and take this situation over. I didn’t want to be put in that situation, but I couldn’t just sit still and let him carry out these threats,” Penny said in a video posted on the Law & Crime Network Youtube channel.
Penny is expected back in court March 20.
