Pretrial hearing begins in NYC subway chokehold case

Daniel Penny, the Marine veteran who choked Jordan Neely to death on the subway last year, told police at the time that he had put the man “in a choke,” and later demonstrated the move to detectives at the precinct, according to court testimony Thursday.

During a pre-trial hearing Thursday, Penny’s lawyers argued that his statements on the day of the incident should not be admitted at trial because Penny was being detained without probable cause at the time. Manhattan prosecutors disagree.

Penny walked into the Manhattan courtroom wearing a gray suit with a tight smile, holding his gaze directly ahead of him as he made his way to his seat in front of the judge. He was charged with manslaughter and criminally negligent homicide in the spring of last year after he held Neely, who was homeless, in a fatal chokehold as other passengers watched on May 1, 2023. He pleaded not guilty.

Justice Maxwell Wiley said he hopes to issue a decision on the matter by early next week.

The question at the center of the case is whether Penny’s actions were legally justified. Prosecutors say they weren’t.

Penny and his lawyers have argued he did not mean to kill Neely, and he acted to protect himself and others on the train car who felt threatened. Still, prosecutors are seeking to prove Penny acted recklessly.

Testimony on Thursday centered around statements Penny made to police officers at Broadway-Lafayette Station, where Penny choked Neely on a crowded F train, as well as statements he made later at a local precinct. Prosecutors questioned officers about different times Penny told them he put Neely "in a choke" or "put him out."

In a video played in court taken when Penny was brought to the precinct for questioning, Penny tells officers he was on his phone when Neely stepped onto the subway car. Penny said Neely immediately threw down his jacket and started yelling “I’m gonna kill everybody; I don’t care if I go to prison forever.”

Penny said in the video that that is when he decided to intervene by restraining Neely. On the video, Penny showed officers the way he held Neely, using one of the officers to demonstrate. At the edge of the screen and partly off-camera, Penny wrapped one arm around the officer’s neck and placed one leg around the officer.

Penny told officers he took Neely to the ground immediately, with Neely “squirming” and “still going crazy” as he tried to hold him down. Penny said it was then that two other people grabbed Neely and he let go.

“I’m not trying to kill the guy, I'm just trying to deescalate the situation,” he told detectives. “I wasn’t trying to injure him, I was trying to keep him from hurting anyone else.”

When officers asked Penny if Neely was armed or had threatened any specific person, Penny said he didn’t know. Later in the video as officers are leaving the room for a second time, Penny asks if he is being detained and when the officers say yes, he says he wants an attorney.

In court, prosecutors played body-worn camera footage from officers who responded to the incident. On it, Penny can be seen on the train car recounting the incident to officers at the scene, telling them he “put him in a choke” Meanwhile, officers on the video are rendering aid to Neely, who lies on the ground nearby.

Penny’s defense lawyers questioned police officers about when Penny was told he was under arrest, and when he was read his Miranda rights. The lawyers asked officers whether Penny was told he was a suspect rather than a witness before he made his statements to police about the incident.

According to court documents, Penny’s attorneys argue that his statements were only obtained through an unlawful arrest, stop and seizure. But prosecutors deny those allegations, and say police took the statements properly.

Meanwhile, prosecutors want the judge to exclude any records or testimony about Neely’s prior use of the drug K2 or the likelihood that he was experiencing a psychotic episode. They say Penny could not have taken those factors into account when he put Neely in a chokehold.

A video taken by a subway passenger showed Penny on the floor of the subway car in May 2023 with his arms wrapped around Neely’s neck. The video went viral and became a litmus test for viewers who either saw Penny as a hero deserving of praise or a vigilante who should face criminal consequences.

In the days after Neely’s killing, protesters filled subway platforms across the city. They urged Manhattan District Attorney Alvin Bragg to charge Penny with a crime, and demanded better treatment of homeless New York City residents who have mental illness. At one demonstration, police arrested more than a dozen people for jumping onto subway tracks.

Penny’s supporters, meanwhile, donated nearly $3 million to an online legal defense fund for him after he was indicted, with donations pouring in from prominent conservatives, including musician Kid Rock and former presidential candidate Vivek Ramaswamy.