A New York City judge on Wednesday declined to dismiss the case against Daniel Penny, the Marine veteran who placed a Black subway rider, Jordan Neely, in a fatal chokehold last year.
Penny, 25, pleaded not guilty in June after a grand jury indicted him on charges of second-degree manslaughter and criminally negligent homicide in the May 1 death of Neely, 30, a known subway busker who performed dance routines in costume as Michael Jackson.
Penny and Neely were riding the F train in Manhattan when the latter began a "somewhat aggressive speech" about how he was thirsty and hungry, witness Juan Alberto Vazquez has told NBC New York. Vazquez caught some of the altercation on camera.
The video showed Penny on the ground holding Neely in a chokehold while two other subway passengers helped restrain him. Vazquez said the chokehold lasted about 15 minutes.
Penny, who is white, said he was defending himself and other passengers after Neely "began aggressively threatening" people. In October, his attorneys filed court documents seeking a dismissal of the case, saying one of the passengers was afraid he "was going to die" when Neely approached, NBC New York reported.
At the time of his death, Neely was homeless and had mental health issues. His family said he had struggled since his mother was murdered in 2007.
Dante Mills, an attorney for Neely's family, said the judge's decision "was a big win."
"I think it’s important to know that the grand jury said Daniel Penny should face charges for killing Jordan Neely. His attorneys tried to get the judge to overrule that, to say that what the grand jury said didn’t matter, but the judge didn’t do that. The judge said Daniel Penny will face these charges," he told reporters.
"We’re coming back here in March, and our expectation is that Daniel Penny is going to be found guilty for killing Mr. Jordan," Mills added.
Attorneys for Penny said: "While we disagree with the Court’s decision not to dismiss the indictment, we understand that the legal threshold to continue even an ill-conceived prosecution is very low."
"We are confident that a jury, aware of Danny’s actions in putting aside his own safety to protect the lives of his fellow riders, will deliver a just verdict," Steven Raiser and Thomas Kenniff said in a joint statement. "Danny is grateful for the continued prayers and support through this difficult process."
Neely was unconscious when officers arrived at the Broadway and East Houston Street subway station. He was pronounced dead at the hospital, police said. The city’s medical examiner said he died from “compression of neck (chokehold)” and ruled his manner of death a homicide.
His death sparked a national debate and renewed calls to address homelessness, mental health and violence on subways.
Penny is due back in court on March 20.