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Criminal Justice

Man Who Fatally Choked Jordan Neely Arraigned on Criminal Charge

The Manhattan district attorney’s office charged Daniel Penny with second-degree manslaughter. He’s due back in court in July.

Protesters embrace on the subway platform at the Broadway-Lafayette subway station in New York City during a "Justice for Jordan Neely" earlier this week. (Alexi Rosenfeld/Getty Images)

The man who used a lethal choke hold on Jordan Neely inside a New York City subway car is facing a felony charge of second-degree manslaughter — but the Neely family’s attorneys say the charge doesn’t go far enough.

Daniel Penny has pleaded not guilty to the manslaughter charge, which carries a maximum sentence of 15 years in prison. The former U.S. Marine was arraigned and released on $100,000 bond Friday after surrendering to police earlier in the day.
Donte Mills, one of the Neely family’s attorneys, suggested Penny had options on how to better handle the incident on the train.

“When you’re trained in combat, it gives you options, but Daniel Penny chose to use a technique that is designed to cut off air, and he chose to continue to hold that choke hold until there was no life left in Jordan Neely,” Mills said during a press conference. “We believe that the conviction should be for murder because that’s intentional.”

Manhattan District Attorney Alvin Bragg said in a statement after the arraignment that after evaluating the evidence, his office determined there was probable cause to arrest Penny and arraign him on felony charges.

Prosecutors said they are seeking a grand jury indictment. Penny is due back in court on July 17.

As the case proceeds, the DA’s office “will be constrained from speaking outside the courtroom to ensure this remains a fair and impartial matter,” Bragg said. But he also said, “Jordan Neely should still be alive today, and my thoughts continue to be with his family and loved ones as they mourn his loss during this extremely painful time.”

Neely is among the overrepresented population of Black people who are experiencing homelessness across the country and especially in New York, where there has been an increased lack of compassion based on misinformation and stereotypes created by those who haven’t experienced being homeless, advocates say. New Yorkers who identify as Black or Hispanic make up 86% of those who are affected by homelessness, according to the Coalition for the Homeless. More specifically, Black people disproportionately represent 56% of those who are heads of household in shelters, the coalition said.

Advocates for those who are unsheltered or experiencing homelessness say that they have warned New York City Mayor Eric Adams and his administration for months to stop delivering false narratives to the public that the homeless population is partially to blame for the uptick of violence across the city and giving the public the idea that they have to protect themselves from them. 

“I remember being at City Hall in December and literally glaring at dozens of press and saying, ‘This is on you, too. If we keep doing this, people will embolden themselves to think that they have to protect the streets,’” said Celina Trowell, a homelessness union organizer with Voices Of Community Activists & Leaders (VOCAL-NY). People living on the streets are more likely to become victims of crime, according to the National Alliance to End Homelessness.

Social media and multiple news outlets have reported that Neely was experiencing homelessness at the time of his death, suffered from mental illness, and at one point in his life made money by impersonating Michael Jackson on subway platforms. Neely’s residence and mental health history have not been confirmed by law enforcement.

Neely’s aunt launched a GoFundMe campaign page last week to pay for the funeral expenses and explained that he was having a rough time since his mother was murdered by strangulation in April 2007 and dumped along the side of a Bronx highway.

“I love my nephew Jordan Neely he was a very talented black man who loves to dance performance was his thing,” his aunt wrote. 

The Rev. Al Sharpton was demanding a full investigation of this “horrific incident as a potential case of manslaughter — if not murder.” 

Sharpton says Neely’s death on the subway is reminiscent of the 1984 Bernhard Goetz attempted murder case. Goetz was acquitted of shooting four unarmed Black teenagers on a No. 2 train in Manhattan, and became known as the “subway vigilante” for taking the law in his own hands during a time when crime was rising.  One of the teens was left paralyzed and with brain damage. Instead of being reviled, Goetz was celebrated and hailed as a hero by some — but it deepened racial tensions across the city. 

“I fought the … Goetz case and we cannot end up back to a place where vigilantism is tolerable. It wasn’t acceptable then and it cannot be acceptable now,” Sharpton said in a written statement.

What happened to Neely?

The 30-year-old’s death was captured on the cellphone of a fellow subway rider, who posted the video on Facebook hours after the incident on May 1. The video does not capture what led up to Penny placing Neely in a choke hold — similar to the one former New York City police officer Daniel Pantaleo used to cause the July 2014 death of Eric Garner. Police told The New York Times that witnesses said Neely was acting in a “hostile and erratic manner” toward other passengers but did not assault anyone when the assailant inserted himself into Neely’s public rant.

The subway rider, who spoke only in Spanish, described Neely’s last words. “I don’t have food, I don’t have anything to drink, I am sick and tired. … I don’t care about going to jail and getting a life sentence. … I am ready to die.” 

The video depicts nearly four of the 15 minutes that Neely was positioned in a choke hold by Penny, the person recording the video said. It begins with Penny on the floor of the train car with his left arm locked underneath Neely’s chin. Neely is initially positioned on his back and on top of Penny as two bystanders — a Black man and white man — assist with the takedown, according to the video observed by Capital B. 

The Black bystander grabbed Neely’s wrist as Neely appeared to struggle to utter words. The white bystander placed his right hand on Neely’s shoulder as Penny kept his arm in a locked position with his right arm for what appeared to be a tighter squeeze. 

“Call the cops,” a voice off camera says. 

Police said they received a call around 2:30 p.m. of a fight onboard a northbound F train at Broadway-Lafayette station in Manhattan. 

The person recording the fatal scuffle repositioned himself to the inside of the train car, where you see that Penny also has his legs wrapped around Neely’s lower torso. The Black bystander continues to hold down Neely’s hands as the full-body choke hold continues. Close to two minutes into the video, both men let go of Neely, whose body goes limp. 

When police arrived, they said they observed a 30-year-old man, who they did not identify, unconscious on the floor. Neely was taken to a nearby hospital, where he was pronounced dead, police said. The man who choked Neely was taken into custody and released, police said.

‘It’s horrific to see people self-deputized’ 

“Why is it that the police were on site, and even in the midst of seeing someone potentially losing their life, did not have that man in cuffs? And the amount of people that helped to restrain — I couldn’t imagine that story being the same if that was a white man restrained by a Black man,” Trowell said. “But it’s horrific to see people self deputized — that goes back to what I was saying about how irresponsible this Black mayor that’s a cop nonetheless can be so reckless with his words.”

The city’s medical examiner ruled on Wednesday that Neely’s cause of death was a choke hold and the manner of death was homicide. 

A local news outlet described Neely as “unhinged” and the person who recorded the video saw the aggressor’s actions as heroic. Classifying the homeless or anyone experiencing a mental health crisis with words such as unhinged and deranged further dehumanizes and gives the public a reason to believe that the victim deserved what happened to them. 

At a vigil on Wednesday afternoon at the crime scene, an attendee told The City: “We cannot just continue to stand by with complicity. … It’s the reduction and dehumanizing of Black lives.”

“I can only help but to think that if this brother had somewhere safe to be, somewhere he can call home, somewhere he could be stable and not have to worry about his next meal, then this would have been different,” Trowell said.

The city has launched programs to address those living in subway stations and on trains that included a housing pilot program that helped the bare minimum of 80 single adults of the nearly 3,500 unsheltered reported in 2022. There’s an additional “68,884 homeless people, including 21,805 homeless children, sleeping each night in New York City’s main municipal shelter system,” according to the Coalition for the Homeless

“The blood of Jordan Neely is on Mayor Eric Giuliani Adams for cutting the mental health & homelessness services out of the budget. He has more concern about the police resources than homelessness resources. He is the Black Giuliani of 2023,” said the Rev. Kevin McCall, a civil rights activist and founder of the Brooklyn-based Crisis Action Center. 

Former New York City Mayor Rudy Giuliani used the police during his tenure to criminalize the homeless who refused to go into a shelter. Adams has a similar policy, but cites sanitation code violations as reason for police to clear out homeless encampments that have popped up across the city during the pandemic.

Trowell says that whenever the public observes someone in distress — meaning hungry or in need to belong to a community — the assumption is that person is having a mental health crisis and that we need to protect ourselves from them. 

“When in fact … I think, as [a] society, it has been intentional to not bother doing the job of protecting those who are in distress and in need,” she said.

This story has been updated to reflect that Daniel Penny has been arraigned and released on bond in the death of Jordan Neely.