Daniel Penny Will Be Charged in Subway Chokehold Killing of Jordan Neely

Daniel Penny, the 24-year-old Marine veteran who choked and killed a homeless man on the subway last week, will face a charge of second-degree manslaughter and is expected to appear in Manhattan Criminal Court on Friday.

The Manhattan district attorney’s office confirmed in a statement that it planned to charge Mr. Penny in the killing of the man, Jordan Neely.

“Daniel Penny will be arrested on a charge of manslaughter in the second degree,” the statement said. “We cannot provide any additional information until he has been arraigned in Manhattan Criminal Court, which we expect to take place tomorrow.”

Mr. Penny encountered Mr. Neely, 30, on an F train on May 1 and placed him in a chokehold, killing him. Witnesses told the police that Mr. Neely had been shouting at passengers, but there has been no indication that he physically attacked anyone.

The police interviewed Mr. Penny, but initially released him without charging him. The struggle on the F train was captured in a four-minute video showing Mr. Penny choking Mr. Neely and holding on for an additional 50 seconds after Mr. Neely stopped struggling.

The video set off protests, and the Manhattan district attorney’s office began investigating soon afterward.

Many city leaders, politicians and advocates for New Yorkers struggling with homelessness and mental illness had called for Mr. Penny’s immediate arrest. They said Mr. Neely’s killing highlighted the city’s failure to care for its most vulnerable and marginalized residents.

Other New Yorkers, while stunned by the killing and critical of Mr. Penny’s actions, reflected on their frustrations and fears about the city’s transit system. The number of major felony crimes on the subway has fallen in recent months, though crime rates are higher than they were before the pandemic, when ridership numbers were higher.

In a statement released several days after Mr. Neely’s death, Mr. Penny’s lawyers said that their client “never intended to harm Mr. Neely and could not have foreseen his untimely death.”

The lawyers, Steven M. Raiser and Thomas A. Kenniff, also said in the statement that “when Mr. Neely began aggressively threatening Daniel Penny and the other passengers, Daniel, with the help of others, acted to protect themselves, until help arrived.”

Lennon Edwards, a lawyer for Mr. Neely’s family, condemned Mr. Penny’s actions. Mr. Neely “was robbed of his life in a brutal way by someone who decided that they were judge, jury and executioner on the spot,” Mr. Edwards said in an interview. “We can’t have vigilantes, and we can’t have people taking the law into their own hands.”

Left-leaning politicians criticized Mayor Eric Adams for his muted initial response to the killing. But on Wednesday, the mayor gave a speech in which he said Mr. Neely’s “life mattered” and that his death was a “tragedy that never should have happened.”

He did not make any references to Mr. Penny, however, and a spokesman for his office did not immediately comment on the district attorney’s decision to charge him.

And family members of Mr. Neely issued a statement saying that Mr. Penny’s “actions on the train, and now his words, show why he needs to be in prison.”

Mr. Neely had been a subway performer known for his impersonation of Michael Jackson but later descended into mental illness and drug abuse. He was well known to homeless outreach workers and to the police and had been violent in the past — he had been charged with assault at least four times, including an incident in November 2021 when he punched a 67-year-old woman in the street on the Lower East Side. The subway riders on the F train could not have known about his past.

What is publicly known about the events on the F train in the early afternoon of May 1 has been gleaned from two main sources: the video recorded by Juan Alberto Vazquez, a freelance journalist, and a brief report from the police and the Fire Department. There have also been accounts from witnesses who have come forward in recent days.

Before he began filming, Mr. Vazquez said he was on the northbound train at the Second Avenue station in Lower Manhattan when Mr. Neely boarded and began screaming, saying he was hungry and thirsty, and then taking off his jacket and throwing it on the ground. The people near Mr. Neely moved away, he recalled.

Mr. Vazquez then said he heard a thump and saw Mr. Penny and Mr. Neely together on the floor, but hadn’t seen what had happened before Mr. Penny grabbed Mr. Neely.

Mr. Vazquez’s footage begins after Mr. Penny places Mr. Neely in a chokehold and shows Mr. Neely writhing on the ground, trying to break free from Mr. Penny — who had also wrapped his legs around him — and two other men.

The train stopped at Broadway-Lafayette Street, on the edge of SoHo, where it remained standing until emergency responders arrived.

Another passenger can be heard in the video saying that his wife had been in the military and knew about chokeholds and warning the men that they should make sure Mr. Neely had not defecated on himself.

“You don’t have to catch a murder charge,” he said. “You got a hell of a chokehold, man.”

About 50 seconds after Mr. Neely becomes motionless, the men release their hold on him. A transit worker can be heard over the loudspeaker calling for the police.

Among the other witnesses was another subway rider, Johnny Grima, who said he entered the car after Mr. Neely had gone limp and told the men holding him to place him on his side. “When they let him go, Jordan’s eyes were open, staring out into space,” said Mr. Grima, 38, a formerly homeless man who lives in the Bronx and did not know Mr. Neely.

Mr. Penny was interviewed by the police on the night of the encounter on the F train and released. Two days later, the medical examiner’s office released its findings, saying that Mr. Neely had died from compression of the neck and ruled his death a homicide.

In the days after the video circulated online, many left-leaning politicians and activists said that if Mr. Penny had been Black, he would have been kept in custody.

The district attorney’s office had said it was looking at a variety of factors before deciding whether to issue charges.

“As part of our rigorous ongoing investigation, we will review the medical examiner’s report, assess all available video and photo footage, identify and interview as many witnesses as possible and obtain additional medical records,” Doug Cohen, a spokesman for the office, said in a statement.

But the office’s confirmation that it planned to charge Mr. Penny suggested that it had determined it had enough evidence to arrange his surrender. The office will still have to secure a grand jury indictment to proceed with a felony case against Mr. Penny, who grew up on Long Island and has no criminal record.

Joshua Steinglass, a veteran homicide prosecutor, is leading the investigation, according to the district attorney’s office. Mr. Steinglass helped lead the trial team in the case against former President Donald J. Trump’s family business.

Second-degree manslaughter, also known as reckless homicide, will require prosecutors to prove that Mr. Penny caused Mr. Neely’s death and did so recklessly, meaning that he knew that the chokehold could kill Mr. Neely, and unreasonably chose to apply it anyway. If Mr. Penny is convicted, he could spend up to 15 years in prison.

Mr. Penny’s lawyers will most likely argue that the force he used against Mr. Neely was justified given the harm that Mr. Neely represented to Mr. Penny or other passengers or both. Prosecutors will have to prove that Mr. Penny used deadly force without having believed that Mr. Neely was also using deadly force or was about to.

Many activists and politicians had called for Mr. Penny to be charged with murder. But that was an unlikely scenario. To win a murder conviction, prosecutors would have had to show that Mr. Penny had intended to cause Mr. Neely’s death, a difficult standard to meet under the circumstances.