Daniel Penny not guilty in NYC subway chokehold death of Jordan Neely

NEW YORK — Daniel Penny was found not guilty of criminally negligent homicide Monday in the chokehold killing of Jordan Neely on a Manhattan F train — bringing closure in the polarizing case that provoked heated debates about vigilantism, mental illness and subway safety.

The verdict, which was announced in Manhattan Supreme Court just before 11:30 a.m., came after Justice Maxwell Wiley on Friday dismissed the top charge of manslaughter at prosecutors’ request after jurors twice said they couldn’t unanimously agree on it. That allowed the panel to consider the lesser charge, carrying a maximum of four years in prison instead of 15.

After the verdict, court officials escorted Penny’s legal team and the jury away from the facility as protesters calling for Penny’s conviction were heard from the 13th-floor courtroom shouting, “No justice! No peace!” In a phone call with the Daily News, Penny’s lawyer, Thomas Kenniff, said his client was “elated” and celebrating at a bar with his legal team.

“Justice has finally been served, and Danny has gotten the acquittal that he knew was coming the last 18 months,” Kenniff said, adding Penny was “elated” to “finally not to be living under the weight of false accusations and having his honor diminished by this misguided indictment.”

Penny’s supporters inside the courtroom began applauding when the verdict was read. Neely’s father, Andre Zachery, became upset by their celebration, prompting officers to eject him and supporters of Neely, who were in tears.

Outside, Zachery addressed the media surrounded by family members, leaders of the New York chapter of the Black Lives Matter movement, who held demonstrations throughout the trial, and Gwen Carr, the mother of slain Staten Island man Eric Garner, who was killed in a department-banned police chokehold in 2014.

“I just want to say I miss my son,” Zachery said in some of his only comments during the trial. “It hurts. It really, really hurts. What are we gonna do, people? What’s gonna happen to us now?”

The jury of seven women and five men heard from more than 40 witnesses during the trial. They got the case on Tuesday and made several requests during deliberations, asking to review testimony from the city medical examiner who ruled Neely’s death a homicide, footage of the encounter and its aftermath, and various legal definitions.

The prosecution portrayed Penny as someone who may have initially acted with good intent when Neely got on the F train he was riding, acting menacingly toward those onboard. But they argued he crossed the line into criminality by holding onto Neely for far too long after passengers fled to safety until he’d choked the life out of him.

Penny’s defense painted him as a good Samaritan being punished for trying to help his fellow New Yorkers in a frightening moment. They sought to convince jurors that the chokehold didn’t kill Neely but rather his poor mental and physical health and history of drug use.

To find Penny guilty of manslaughter, which jurors couldn’t unanimously agree on Friday, the panel had to find he unjustifiably created a grave risk to Neely’s life that he consciously disregarded when he subdued him on the train. To find him guilty of criminally negligent homicide, they were required to find he created an unjustifiable grave risk that he failed to perceive.

In a statement, Manhattan District Attorney Alvin Bragg said the time the jury took to deliberate the divisive case underscored why it had to go on trial.

“Their lengthy deliberation – and the totality of the facts and the evidence – underscored why this case was put in front of a jury of Mr. Penny’s peers,” Bragg said.

The DA lamented that career prosecutors and their relatives had been aggressively targeted and “besieged with hate and threats – on social media, by phone and over email.”

“Simply put, this is unacceptable, and everyone, no matter your opinion on this case, should condemn it,” Bragg said. “These are prosecutors who have dedicated decades of their lives to public service and to the safety of Manhattan.”

At his weekly press briefing, Mayor Eric Adams blamed the city’s mental health services, saying, “Jordan should not have had to die.”

“I strongly believe, as I’ve been stating, probably from day one, we have a mental health system that is broken. When you have someone repeatedly going through that system, that’s a signature of failure,” Adams said.

The case garnered national attention after footage of the chokehold incident went viral. In the early days of the presidential primary campaign season, Penny became a right-wing cause célèbre, pulling in millions of dollars toward his legal defense and words of support from GOP candidates like Donald Trump, Vivek Ramaswamy and Florida Gov. Ron DeSantis. They hailed him as a hero who took action to protect passengers at a time when many subway riders were on edge following a spate of horrific acts of violence on the trains.

The nearly two-week delay between Neely’s death and Penny’s arrest saw civil rights protesters take to the city’s streets and subway tracks to protest the unaccounted-for killing of a poor and vulnerable Black man in crisis, who did not touch anyone on the train or have a weapon. The case drew instant comparisons to the 1984 shooting by Bernie Goetz, a white engineer who gunned down four Black teens on the train who he said he believed planned to rob him, paralyzing one. The Rev. Al Sharpton delivered the eulogy at Neely’s funeral, telling mourners, “A boy on a train is screaming for help, and somebody comes up from behind and claims self-defense.”

Sharpton, who heads the National Action Network, issued a statement Monday condemning the verdict.

“Jordan Neely’s life was brutally taken away because of unnecessary vigilantism,” he said. “This kind of behavior was inexcusable 40 years ago when Bernhard Goetz opened fire in a subway car, and it remained the case more than a year ago when Daniel Penny took Jordan’s life. Jordan was in the middle of a mental health crisis, but instead of being offered a helping hand, he got an arm around his neck.”

Zachery filed a civil suit against Penny during deliberations last week. His attorney, Donte Mills, said they would continue to seek accountability for the chokehold in civil court.

Mills said the outcome meant, “If we see someone going through something, to ask them if they’re okay. That’s how we help each other. Because we can’t rely on the system to do it for us.”

Penny, 26, of Suffolk County, L.I., served for four years in the Marines and was studying architecture and working as a barback in Brooklyn at the time of the incident.

Neely, 30, who was homeless and experiencing untreated mental illness and drug addiction, grew up in New York and New Jersey. His mother was brutally murdered when he was 14, which his family has said sent him into a deep funk and saw him become estranged from his relatives. When he was stable, he found joy in dancing to Michael Jackson’s music for New Yorkers.

The lives of the two men, both standing at 6 feet and 1 inch tall, collided at around 2:25 p.m. on the afternoon of Monday, May 1, 2023.

Penny boarded the train in Brooklyn and was going to the gym near the Flatiron building. Neely got on at the Second Ave. station, threw down his jacket, and began screaming shortly after the doors closed.

Eight passengers who testified at the trial said Neely said something to the effect of being hungry, thirsty, and ready to die and go back to jail, alarming them. Three said he used the words “kill” or “die,” in reference to himself or others.

A young mother who was on the train with her son did not recall Neely descending on them and saying, “I will kill,” as the defense stated at the start of the trial. Nobody testified that Neely, who was unarmed, put his hands on anyone or directed his threats at someone specific.

Penny quickly intervened, wrapping his arm around Neely’s neck and taking him down to the floor from behind, according to his defense and witness testimony. Within around 30 seconds, the train reached the next stop, Broadway-Lafayette, where the two men remained in a struggle on the floor, and passengers fled to the platform.

Prosecutors argued Penny’s actions became criminal at that point when he continued to subdue Neely in a chokehold for almost six minutes until Neely passed out, never to regain consciousness.

Two men aided Penny – Eric Gonzalez, 39, a room manager at a casino, who had been waiting on the platform when the train pulled into the station, and a man from Germany, who was on the train and refused to cooperate with either side or return to the U.S. to testify.

In a nearly five-minute video shot by independent journalist Juan Alberto Vasquez, which catapulted the incident into the national spotlight, Penny is seen with his arm gripped around Neely’s neck and his legs wrapped around his body on the stalled train. Jurors watched it multiple times during the trial, examining it frame-by-frame and in slow motion.

Neely raises his left arm, and Gonzalez holds it down. Neely then raises his right arm and taps the leg of the German tourist, appearing to motion for help. The tourist then holds down Neely’s right arm. Gonzalez begins holding down both of Neely’s arms, the tourist now holding his shoulder, and Neely begins to squirm with greater effort as Penny tightens his grip around his neck.

In his testimony, Penny’s former martial arts trainer in the Marines, Joseph Caballer, said he had appeared to apply the chokehold technique he’d been taught incorrectly.

The situation intensifies, and the men roll over. Neely starts kicking his legs to break free. About three minutes into the video, Neely stops moving.

Witness Larry Goodson, 61, is then heard telling the men they should let go. Gonzalez insists Penny is “not squeezing no more.”

“You gotta let him go. My wife is ex-military. You going to kill him now,” Goodson says in the video, warning that if Neely defecated himself, “that’s it.”

Within a few seconds, Penny and Gonzalez let up as Neely’s body goes limp.

Police and medics soon arrived, failed to revive Neely, and brought him to Lenox Hill Hospital, where he was pronounced dead. On police-worn camera footage, Penny is seen telling officers at the scene he “just put him out.” Later, he willingly sat for questioning with detectives at the Fifth Precinct stationhouse in footage jurors also asked to review.

“I was on my phone like listening to music. I wasn’t paying attention. He was just a crackhead; you know what I mean?” Penny told the cops about Neely getting on the train. “I felt the need that to, you know, step in because there’s women, children on the, on the train. I’m sure you’ll, there’s ladies there that, that’ll vouch for me.”

When he testified on Nov. 12, Gonzalez said he told Penny during the altercation that he could let go of Neely’s neck but that Penny did not. Gonzalez also admitted that he initially lied to authorities – claiming he’d been on the train the whole time and that Neely assaulted him and was breathing when he left the scene – out of fear he’d face charges.

The jury was asked to draw starkly different conclusions from the evidence.

“Jordan was on a collision course with himself. The consequences of Danny failing to act may very well have been the trial of Jordan Neely for hurting or killing someone on that train,” Steven Raiser said in his summation.

“This case is about a broken system. A broken system that does not help our mentally ill or our unhoused. In fact, it is that broken system that led us, that is interwoven into the very fabric of this case.”

The prosecution, in turn, said passengers’ fear of Neely was valid but that Penny did not need to use deadly physical force to address it – or subdue the unarmed Neely once everyone was off the train.

“(The) law is very proscribed. It is very narrow, very precise to make sure that people only use deadly physical force against each other when it is absolutely necessary, and for as long as it is absolutely necessary,” Assistant District Attorney Dafna Yoran said last week.

“You obviously cannot kill someone because they are crazy and ranting and looking menacing. No matter what it is that they are saying.”

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