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NEW YORK (WABC) — A jury of 12 New Yorkers will begin deliberating Monday morning whether Daniel Penny committed criminally negligent homicide when he placed Jordan Neely in a chokehold on a subway car last year, after the jury last week could not reach a unanimous verdict on the more serious crime of manslaughter.
At the request of prosecutors on Friday, Judge Maxwell Wiley dismissed the second-degree manslaughter charge – which carried a maximum 15-year sentence – and directed the jury to turn to the lesser charge of criminally negligent homicide, which has a four-year maximum sentence. Neither crime has a minimum sentence.
“What that means is you are now free to consider count two. Whether not that makes any difference or not, I have no idea,” Wiley said before sending the jury home for the weekend.
Prosecutors allege that Penny killed Neely, a 30-year-old homeless man who had previously been a Michael Jackson impersonator, when he placed him in a six-minute-long chokehold on a subway car last year, including for 51 seconds after his body went limp. Assistant district attorney Dafna Yoran argued Penny knew his actions could kill Neely but continued to hold him in a chokehold for “way too long” and “didn’t recognize his humanity.”
The city’s medical examiner concluded Penny’s chokehold killed Neely. The defense argued Neely died from a genetic condition and the synthetic marijuana found in his system.
Defense attorney Steven Raiser told jurors that Penny “acted to save” subway passengers from a “violent and desperate” Neely, who was acting erratically and “scared the living daylights out of everybody.” Raiser argued that Neely was fighting back, and Penny continued to hold on because he feared he would break free, though he didn’t intend to kill Neely.
Last week, the jury spent more than 23 hours across four days deliberating whether Penny, a 26-year-old Marine veteran and architecture student, committed second degree manslaughter before repeatedly signaling that they could not reach a unanimous verdict.
Judge Wiley ultimately granted prosecutors’ request to dismiss the first count while Penny’s defense attorneys unsuccessfully pushed for a mistrial, arguing that continued deliberations could lead to a “coercive or a compromised verdict” by “elbowing” jurors to convict on the lesser charge.
Manslaughter would have required proving that Penny acted recklessly and grossly deviated from how a reasonable person would behave, while proving criminally negligent homicide requires the jury be convinced that Penny engaged in “blameworthy conduct” that he did not consider would lead to the risk of death.
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