Judge Refuses To Dismiss Subway Death Case Against Daniel Penny
Daniel Penny leaves the courtroom after an arraignment hearing at NYS Supreme Court on June 28, 2023 in New York City. Penny was arrested and initially charged with 2nd Degree Manslaughter in the chokehold death of Jordan Neely.
(Photo by Michael M. Santiago/Getty Images)

Marine veteran Daniel Penny faced a setback on Wednesday in his effort to put an end to a New York City subway death case against him that made national headlines last year.

A judge denied Penny’s motion to dismiss in connection to the May 2023 incident in which Penny restrained Jordan Neely, a homeless man who was allegedly threatening passengers on a subway car, until Neely appeared to lose consciousness and later died. Penny, 25, pleaded not guilty to charges of second-degree manslaughter and criminally negligent homicide, which carry sentences of up to 15 years and four years, respectively.

“While we disagree with the Court’s decision not to dismiss the indictment, we understand that the legal threshold to continue even an ill-conceived prosecution is very low,” Penny’s lawyers said in a statement on Wednesday. “We are confident that a jury, aware of Danny’s actions in putting aside his own safety to protect the lives of his fellow riders, will deliver a just verdict. Danny is grateful for the continued prayers and support through this difficult process.”

Penny’s lawyers filed to dismiss the case in October, claiming Neely “began aggressively threatening” people on the train and insisting their client did not intend to harm Neely when Penny and others acted to “protect themselves” until help arrived. Witnesses recalled Neely, a 30-year-old homeless street performer known to have mental issues and an extensive criminal record, exhibiting “satanic” behavior and yelling someone was going to die, according to court documents.

Bystander video showed Penny restraining Neely on the ground in a headlock and Neely appearing to lose consciousness. Neely was later pronounced dead at a hospital and New York City’s medical examiner ruled his death a homicide due to “compression of neck (chokehold)” but declined to determine culpability. Penny, who was charged as protests broke out in response to the subway incident, is free on $100,000 bail.

Manhattan Supreme Court Judge Maxwell Wiley, who rejected the motion to dismiss the case in a hearing on Wednesday, said he needed more time to decide on a separate request by the defense to suppress search warrant evidence, per the New York Daily News. The case is expected to return to court on March 20.


Dante Mills, an attorney for Neely’s family, called the judge’s ruling on Wednesday a “big win.” He added, according to NBC News, “I think it’s important to know that the grand jury said Daniel Penny should face charges for killing Jordan Neely. His attorneys tried to get the judge to overrule that, to say that what the grand jury said didn’t matter but the judge didn’t didn’t do that. The judge said Daniel Penny will face these charges.”

He also said, “We’re coming back here in March and our expectation is that Daniel Penny is going to be found guilty for killing Mr. Jordan.”

In video clips released by his lawyers last year, Penny denied that race was a motivating factor behind his actions. Penny, who is white, called such claims “absolutely ridiculous,” adding, “I didn’t see a black man threatening passengers. I saw a man threatening passengers, a lot of whom were people of color.”

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The Daily Wire   >  Read   >  Judge Refuses To Dismiss Subway Death Case Against Daniel Penny