Not a hero or killer: Opening statements heard in trial of Daniel Penny

NEW YORK (PIX11) — Jordan Neely’s family sat in the back of a Manhattan courtroom and painfully watched a video of their loved one lying motionless with his eyes glazed over on a subway floor as officers tried to revive him frantically.

Some couldn't take their eyes off the screen. Some teared up and looked away. 

“He’s not breathing,” an NYPD officer said as another cop was desperately doing chest compressions until her long brown hair unraveled from its bun.

The scene went on for several minutes and was caught on police body-worn camera footage played for the jury Friday in the trial of Daniel Penny, the 25-year-old Marine veteran accused of putting Neely, 30, in a deadly chokehold during an encounter on an uptown F train in Lower Manhattan last year, prosecutors said. 

“He used far too much force for far too long. He went way too far,” Assistant District Attorney Dafna Yoran said during opening arguments.

Neely, who was homeless and suffering from mental illness, got on to the F train in the Broadway-Lafayette station on May 1, 2023, and was frightening passengers with his loud, erratic behavior while demanding food and drinks, according to prosecutors and the defense. 

The whole incident happened in 30 seconds. But Penny allegedly held Neely in a chokehold for nearly six minutes, including the last 51 seconds when Neely was unconscious and stopped trying to wrestle free, Yoran said. 

“I got him. You can let him go,” another man who was helping Penny subdue Neely told him. 

But he didn’t. 

“This is when he killed Mr. Neely,” Yoran said. 

The defense claimed Penny intervened after seeing a “psychotic” Neely moving toward a woman who was barricading her young son behind the carriage before Neely screamed, “I will kill,” according to defense attorney Thomas Kenniff. 

“In that moment, Danny could look away and pray, or he could summon the courage to put the safety of his neighbors above that of himself, to protect those who could not protect themselves,” and he did the latter, Kenniff said.

“It doesn’t make him a hero. But it doesn’t make him a killer.”

The defense also argued that Penny used as much force as he needed and the defendant loosened his grip when Neely stopped struggling in the two minutes before the 5-minute, 53-second video was taken by another passenger.

"He was not squeezing that whole time because [Neely] would've been unconscious in the first two minutes," Kenniff said.

The lawyer said Penny was pleading with fellow passengers to call the police and that he kept holding Neely because the man periodically flailed or tried to get up.

When officers arrived at the scene, Penny, who has a green belt in martial arts, told them, "I put him out," according to prosecutors and the body cam footage.

Cops and emergency personnel spent about 20 minutes trying to resuscitate Neely, who was pronounced dead at the hospital. The medical examiner ruled he died of asphyxiation.

Penny, dressed in a navy blue suit and met with demonstrators on his way into court, was charged with manslaughter and criminally negligent homicide. The jury has to decide if his actions, not intent, were reckless, prosecutors said.

The trial is expected to last four weeks.