Footage of Daniel Penny’s statements to police after he placed Jordan Neely in a fatal chokehold aboard a subway car — in which he called the victim a “crackhead” — were shown in court Thursday.
The videos, which Penny’s defense wants prosecutors barred from showing the jury at his upcoming manslaughter trial, will not be released publicly unless Manhattan Supreme Court Justice Maxwell Wiley allows them in evidence. The judge is considering requests from both sides ahead of jury selection, scheduled for Oct. 21.
Penny, 25, a former Marine from Long Island, willingly sat for an interview with detectives from the 5th Precinct after the May 1, 2023, chokehold incident that claimed the 30-year-old Neely’s life. Penny waived his right to stay silent and have an attorney present, the footage shows.
He said he got on a northbound F train at Jay St.-MetroTech in Brooklyn and that Neely boarded his car at the Second Ave. stop in the East Village in Manhattan. Penny said Neely threw a windbreaker jacket as the doors closed, and began to shout threateningly at passengers and said something about “ginger ale and Sprite.”
Dismissively describing Neely as a “crackhead,” Penny said the victim had his back to him when Penny “just kind of got him in a hold” in an attempt to “deescalate” the situation.
“I get him down, he’s squirming around and stuff,” Penny said. “It seems like he’s resisting.”
Asked several times about his method of restraint, Penny said he applied pressure when the subdued Neely got “a little bit of energy,” motioning a chokehold to the two detectives.
“When he starts to squirm, I hold him tighter,” Penny said.
Prosecutors want to show the recordings to jurors to bolster their argument that Penny acted recklessly and disregarded signs he was putting Neely’s life at risk. At a pretrial hearing Thursday, they called to the stand the detectives who interviewed Penny and some officers who responded to the scene.
However, Penny’s lawyer Thomas Kenniff argued that the precinct interview should be suppressed because Penny wasn’t lawfully being detained, accusing authorities of manipulating him into believing he had to talk to them.
Kenniff also opposed the inclusion of police-worn body camera footage of Penny’s remarks to cops at the subway station, when he said, “I had him pretty good. I was in the Marine Corps,” among other remarks.
The defense played police bodycam footage of straphangers relating what they witnessed, which Kenniff said was recorded while cops had Penny “on ice” back at the precinct. Two subway riders quoted Neely as saying he didn’t care if he died and went to jail. One woman said Neely was “terrifying the entire train.” Nobody said Neely touched any of the passengers.
Prosecutors from Manhattan District Attorney Alvin Bragg’s office said it was “clear” that Penny knew he was free to leave the precinct, noting he was never handcuffed or patted down by cops. They also want to block defense lawyers from focusing on Neely’s history of drug use and mental health issues, which they say is an attempt “to smear the victim’s character so that the jury will devalue his life.”
Penny has pleaded not guilty to manslaughter and criminally negligent homicide and could face significant prison time if convicted.
Viral footage of the latter stages of the incident shows Penny with his arm tightly curled around Neely’s neck and his legs wrapped around his body for some four minutes, briefly aided by two men, on the floor of the subway, as it was stopped at the Broadway-Lafayette St. station.
A writhing Neely eventually stops moving, the footage shows, while Penny continues gripping him in a chokehold. Neely was later pronounced dead at the hospital. The city medical examiner determined his cause of death was homicide, and Penny was arrested 11 days after the incident and indicted by a grand jury. He’s currently out on a $100,000 bond.
The delay between Neely’s death and Penny’s arrest prompted citywide protests over the unaccounted killing of a poor and unarmed Black man in broad daylight. Prominent Republicans rushed to Penny’s defense, lauding him as a good Samaritan and crowdfunding more than $3 million toward his defense.
Bodycam footage played in court shows cops — who administered Narcan to Neely at the scene and attempted CPR — searching the unconscious man’s pockets on the train car and finding a muffin.
The victim, who grew up in Manhattan and New Jersey, was homeless and battled severe mental illness in his short life, according to his loved ones. His mother was brutally murdered when he was 14. In happier moments, he was familiar to many New Yorkers as a passionate street performer and Michael Jackson tribute artist who busked underground.
In Penny’s interview with detectives, he said he wasn’t trying to injure Neely and that it wasn’t how he was “trained,” in reference to his military service.
“These guys are on the train all the time,” Penny said, but added that Neely seemed threatening. He quoted the victim as saying he was going to “kill everybody,” but Penny later said he didn’t know if those words were used or if Neely touched anyone.
Wiley is expected to rule on the motions in the coming weeks.