Daniel Penny trial judge agrees to drop top manslaughter count after jury deadlocks twice
Manhattan prosecutors were forced to take the drastic step of tossing the top charge against Daniel Penny Friday after jurors twice said they couldn’t agree on a verdict in the highly watched subway chokehold case.
The note from jurors stating that they were deadlocked on the count of manslaughter in the second-degree sparked a dizzying and dramatic back-and-forth that ended with Manhattan Supreme Court Justice Maxwell Wiley agreeing to dismiss the rap.
“I’ll take a chance and grant the people’s application,” Wiley said, instructing the jury to return Monday and deliberate the charge of criminally negligent homicide, which carries a lighter sentence.
“Whether that makes any difference or not, I have no idea. But I’m going to direct you to focus your deliberations on count two,” he said with a touch of deadpan humor — before telling them: “Go home and think about something else.”
The decision came hours after jurors’ first note saying they couldn’t agree on whether to convict Penny, 26, of manslaughter for putting the troubled 30-year-old homeless man in a six-minute chokehold during the May 2023 encounter on a Manhattan F train.
The 12-person panel had been instructed by Wiley that they first needed to reach a verdict on the top count before they could consider the lesser criminally negligent homicide rap.
Deliberations began on Tuesday afternoon in the lightning-rod case that has sparked fierce debate over whether Penny was justified in grabbing and holding Neely by the neck after he got on the car yelling and scaring passengers.
Manslaughter, which carries a punishment of up to 15 years in prison, requires prosecutors proving that a person recklessly caused someone else’s death. The second count, which carries a sentence of probation to four years behind bars, is when a person acts with “criminal negligence” by failing to perceive the risk of their actions but going through with it anyway.
Jurors had also requested shortly before the lunch break that the judge clarify the term “reasonable person” — a concept that applies to Penny’s justification defense.
To acquit him on justification grounds, the jury would have to decide that if the Marine veteran used deadly physical force, it was necessary for him to do so to defend himself and others on the subway — and whether a “reasonable person” in Penny’s shoes would have acted the same way.
“Ultimately what a reasonable person is is up to you to decide,” the judge said, adding: “Hope that helps.”
They also sent two notes saying that they were at an impasse in deciding whether Penny “recklessly” caused Neely’s death.
The judge suggested that he might consider ordering a mistrial in the whole case rather than order one on just the top charge as jurors considered weighing the second. Wiley said he would have done this so as not to lead to a “compromise verdict,” which New York state courts try to avoid.
Assistant District Attorney Dafna Yoran said that “it would be a crazy result” for the case to end in a mistrial without first seeing if the jury might reach a verdict on the lesser count.
She could then be seen pacing around the courtroom on her cell phone and talking to District Attorney Alvin Bragg’s office staff in the front row of the gallery.
The veteran homicide prosecutor left the room, but returned minutes later alongside Steven Wu, the chief of the DA’s office’s appeals bureau. Wu then argued to the judge that axing the manslaughter charge would eliminate the threat of a compromised split verdict.
Penny’s defense attorneys still objected to the judge dropping the top count, slamming the move as a possible ploy to “coerce” jurors to reach what they called a “compromise” verdict.
“The law is clear that compromised verdicts are to be avoided,” attorney Thomas Kenniff told the court. “This is essentially elbowing the 12 members of the jury to do just that.”
Wiley sided with the prosecutors, despite Kenniff pleading that “I am not aware of any case where this has been permitted.”
“I think the defense has correctly stated what the law is, but the DA’s proposal would eliminate the issue that you are citing,” the judge said.
The dismissal means that Bragg’s office cannot retry Penny on the stiffer charge, no matter what the jury decides to do when they pick up deliberations on Monday.
Before dismissing the jury for the weekend, Wiley informed them that the court had tossed the manslaughter charge — without explaining the unusual series of events that had led to the dismissal.
Both counts deal with the question of justification, but jurors can convict on criminally negligent homicide if they find that Penny failed to identify the risk that his chokehold could kill the troubled homeless man, and that he should have known that Neely could have died.
Penny’s lawyers have said the Long Island native and aspiring architect was justified in protecting passengers from a man who witnesses said yelled, “Someone’s going to die today!” and who said he was ready to go to jail after boarding the uptown F train.
But prosecutors have stressed that no witness testified that Neely threatened anyone specifically, touched anyone, or brandished a weapon. Police later found only a muffin in his pocket.
The case has spawned contentious debate and led to scrutiny over how Neely fell through the cracks of a broken city mental health system despite reporting his mental illness to authorities during more than a dozen prior run-ins with cops.
Penny now faces up to four years in prison on the lesser charge, but it’s unclear how stiff a sentence Bragg’s office would ask for if he’s convicted.
