Minutes after a subway rider named Daniel Penny choked Jordan Neely in a train car in May 2023, Mr. Penny stood inside the Broadway-Lafayette Street station in Manhattan telling officers, “I just put him out.”
Mr. Penny was recorded on body-worn camera explaining to officers that Mr. Neely, a homeless man, had entered an F train and thrown his possessions on the ground, and that he “was very aggressive, going crazy.”
“He’s like: ‘I’m ready to go to prison for life. I’m ready to die, I’m ready to die,’” Mr. Penny told an officer, according to court filings from prosecutors. “And I was standing behind him. I think I might have just put him in a choke, put him down. We just went to the ground. He was trying to roll up. I had him pretty good. I was in the Marine Corps.”
Last year, Mr. Penny, who is from Long Island, was charged with second-degree manslaughter and criminally negligent homicide by the Manhattan district attorney’s office, and jury selection for his trial is scheduled to begin on Oct. 21. In a hearing on Thursday, lawyers for Mr. Penny asked a judge to suppress the comments he made to officers at the subway station and later at a precinct house.
When the video of the encounter spread online last year, it reverberated through the nation. The chokehold was captured in a four-minute video that showed Mr. Penny with his arms around Mr. Neely’s neck and his legs wrapped around his body. Mr. Neely struggled against Mr. Penny’s restraint as two other men stepped in to hold him down.
Mr. Penny cooperated with officers who came to the scene and arrested him after Mr. Neely died, even going back to the Fifth Precinct to speak with them, his lawyers said in court filings. However, his statements followed what they argued was an illegal arrest.
Prosecutors have said in filings that the comments are admissible.
Prosecutors have argued that Mr. Neely’s prior acts and mental history are irrelevant to the case. They have asked that his health records not be admitted as evidence, or heavily limited if they are, and that the judge bar some experts whom the defense has said it wants to call to the witness stand.
One is a psychiatrist whom defense lawyers said they would call to discuss Mr. Neely’s mental illness, treatment history and chronic use of K2, a synthetic drug. That testimony should be fully omitted, prosecutors argued, because state law holds that “a deceased victim’s prior bad acts and psychiatric history are not admissible unless they are relevant to an issue at trial.”
“The psychiatrist’s testimony and the unredacted psychiatric records are inadmissible, and their suggested introduction is a transparent attempt by the defense to smear the victim’s character so that the jury will devalue his life,” prosecutors said in court papers.
On the day of Mr. Neely’s death, he boarded a northbound train at the Second Avenue station and immediately began screaming, witnesses said. Mr. Penny approached him from behind, brought him to the ground and put him in a chokehold, according to prosecutors. Even after Mr. Neely stopped moving, video captured at the scene shows that Mr. Penny did not let go for several minutes.
The city medical examiner’s office ruled Mr. Neely’s death a homicide two days later.
Mr. Neely, 30, had been struggling with his mental health for years. He was on a roster informally known as the Top 50, a list of homeless New Yorkers in a city of eight million who stand out for the severity of their troubles and their resistance to accepting help.
In the days after the killing, New Yorkers were sharply divided. Many saw it as a shocking act of public violence that needed to be prosecuted, and an example of the city’s failure to care for people with serious mental illness. Others felt that the killing validated fears about public safety, particularly in the subway system.
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