Jurors in Manhattan sent a note on Friday morning to a judge overseeing the Daniel Penny trial saying that they had come to an impasse on whether he was culpable in the choking death of a disturbed subway passenger last year, leaving unresolved a case that has come to exemplify New York’s post-pandemic struggles.
After nearly three days of deliberations, the jurors — seven women and five men — sent a note to the judge, Maxwell T. Wiley, saying: “We the jury request instructions from Judge Wiley. At this time, we are unable to come to a unanimous vote on count one, manslaughter in the second degree.”
Justice Wiley said he had to decide if a unanimous agreement was impossible on the manslaughter charge before considering if the jury could move onto deliberating the second charge: criminally negligent homicide.
Prosecutors said Mr. Penny fatally choked the subway passenger, Jordan Neely, a 30-year-old former Michael Jackson impersonator who struggled with his mental health, when he held him in a chokehold for about six minutes on the floor of an F train in May of 2023.
In the instructions the jurors were given, they were told that they had to first consider the charge of manslaughter and come to an agreement. If they believed that Mr. Penny, a 26-year-old former Marine, was guilty, they would not need to consider the second charge.
It was unclear if jurors would be able to consider the second charge if they failed to reach an agreement on the first, and they were asking for instructions on Friday about what to do.
Upon receiving the jury’s note on Friday, Mr. Penny’s lawyer, Thomas A. Kenniff, argued that the jury’s instructions were clear and that they should not move on to consider the second charge.
Dafna Yoran, an assistant district attorney, pushed back, calling it “crazy” to have a hung jury “just because they are not able to move to a second count.”
Justice Wiley asked the parties to discuss the matter before calling the jury into the courtroom to make a decision.
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