A former Marine who trained Daniel Penny to apply a chokehold said Thursday that images and video suggest that he might have done so improperly when he killed a homeless man last year.
The trainer, Joseph Caballer, testified that photos seemed to show Mr. Penny trying to use a “blood choke” to restrain the man, Jordan Neely, on the floor of a subway car. A proper blood choke cuts off oxygen to the brain in as little as eight seconds, said Mr. Caballer, who taught Mr. Penny the technique when they served together in the Marine Corps.
But as the men struggled and Mr. Neely shifted in Mr. Penny’s arms, Mr. Caballer said, the hold could have turned into an “air choke,” which takes longer to render a person unconscious and could “cause injury to the trachea or windpipe.” The hold is not taught by the Marines, he told jurors in Manhattan criminal court.
Mr. Neely, who had a history of mental illness, had boarded an uptown F train on the afternoon of May 1, 2023, and begun yelling, throwing his jacket on the floor and striding through the subway car, according to witnesses.
Mr. Penny said he had stepped in to protect other riders as the train traveled between stations. He did not put pressure on Mr. Neely’s neck, he told the police, and restrained him only to keep him “from hurting anybody else.”
Mr. Penny has been charged with manslaughter and criminally negligent homicide.
Prosecutors with the Manhattan district attorney’s office said his actions became criminal when he did not release his chokehold once Mr. Neely was no longer a threat, when the train had stopped at the Broadway-Lafayette Street station in Manhattan and the doors had opened, letting people out of the subway car.
On Thursday, Mr. Caballer, 30, testified that all Marines are required to attain basic proficiency in martial arts by the time they leave boot camp. Mr. Penny reached the third of five levels, prosecutors have said.
Mr. Caballer, who said he trained 60 to 80 people during his service, said that at each level, Marines are trained on blood chokes. When asked by a prosecutor, Dafna Yoran, how the nonlethal choke might become deadly, Mr. Caballer replied, “You would hold it too long.”
Mr. Caballer testified during cross-examination that, at times, it appeared that Mr. Penny was “not applying a lot of pressure” and said that a person could have someone in a chokehold without exerting pressure or restricting breathing. Mr. Penny’s decision to let go, he said, would have depended on whether he felt “that it’s safe enough to fully release or to just hold Mr. Neely there without applying pressure.”
On that afternoon in May, as Mr. Penny stood over Mr. Neely’s unconscious body sprawled on the subway floor, he hinted at his military training, mimicking a chokehold with his arms.
“I had him pretty good,” he can be heard saying in footage from an officer’s body camera. “I was in the Marines.”
That evening, in an interview with detectives, Mr. Penny said that he had not intended to kill Mr. Neely and had been trying to de-escalate a situation with a man “that was actually threatening.”
“He was squirming around and getting loose and that’s why I got nervous,” Mr. Penny told the detectives.
As prosecutors played footage of the interview, Mr. Neely’s father, Andre Zachery, who was sitting next to courtroom sketch artists in the gallery, looked down and shook his head.
Mr. Penny told the detectives that he had released his chokehold as soon as he received confirmation from others in the subway car that they were holding Mr. Neely.
But a witness who testified this week, Eric Gonzalez, said that he had told Mr. Penny to release his hold on Mr. Neely and that he would help grab the man’s hands. Mr. Penny ignored his suggestion and continued the chokehold, he said.
Prosecutors have said that Mr. Penny held Mr. Neely in a chokehold for about six minutes, releasing him only after he had become unconscious and gone limp.
A medical examiner who testified Thursday afternoon, Dr. Cynthia Harris, said that she had determined that Mr. Neely died from “compression of the neck.” On his death certificate, she told the jurors, she wrote in parentheses the word “chokehold.”
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