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Jurors saw video Monday of Daniel Penny gripping a man around the neck on a New York City subway train as another passenger beseeched the Marine veteran to let go.
Two videos shot by bystanders — one a high school student, the other a freelance journalist — offered the anonymous jury its first direct view of the chokehold at the heart of the manslaughter trial surrounding Jordan Neely’s 2023 death.
Prosecutors say the student’s video has never been made public before. Jurors also saw what prosecutors said was a fuller version of Mexican freelance journalist Juan Alberto Vázquez’s video, part of which he’d posted on social media and was widely seen.
A member of Neely’s family held his head in his hands and then left the courtroom as Vázquez’s video was replayed on big screens.
Prosecutors say Penny, 25, recklessly killed Neely, who was homeless and mentally ill. He had frightened passengers on the train with angry statements that some riders found threatening.
Penny has pleaded not guilty. His lawyers say he was defending himself and his fellow passengers, stepping up in one of the volatile moments that New York straphangers dread but most shy away from confronting.
Neely, 30, known to some subway riders for doing Michael Jackson impersonations, had mental health and drug problems. His family has said his life unraveled after his mother was murdered when he was a teenager and he testified at the trial that led to her boyfriend’s conviction.
He crossed paths with Penny — an architecture student who’d served four years in the Marines — in a subway train on May 1, 2023.
Neely was homeless, broke, hungry, thirsty and so desperate he was willing to go to jail, he shouted at passengers who later recalled his statements to police.
He made high schooler Ivette Rosario so nervous that she thought she’d pass out, she testified Monday. She’d seen outbursts on subways before, “but not like that,” she said.
“Because of the tone, I got pretty frightened, and I got scared of what was said,” said Rosario, 19. She told jurors Neely was shouting in “an angry tone, like when you’re fed up.”
She said she looked downward, hoping the train would get to a station before anything else happened.
Then she heard the sound of someone falling, looked up and saw Neely on the floor, with Penny’s arm around his neck.
The train soon stopped, and she got out but kept watching from the platform. She would soon place one of the first 911 calls about what was happening. But first, her shaking hand pressed record on her phone.
She captured video of Penny on the floor — gripping Neely’s head in the crook of his left arm, with his right hand atop Neely’s head — and of an unseen bystander saying that Neely was dying and urging, “Let him go!”
Rosario said she didn’t see Neely specifically address or approach anyone.
But according to the defense, Neely lurched toward a woman with a stroller and said he “will kill,” and Penny felt he had to take action.
Prosecutors don’t claim that Penny intended to kill, nor fault him for initially deciding to try to stop Neely’s menacing behavior. But they say Penny went overboard by choking the man for about six minutes, even after passengers could exit the train, after two of them stayed and helped hold Neely down, and after he stopped moving for nearly a minute.
A lawyer for Neely’s family maintains that whatever he might have said, it didn’t justify what Penny did.
Defense attorneys say Penny kept holding onto Neely because he tried at times to get loose. Prosecutors have said Neely was fighting for survival.
Vázquez testified through a Spanish-language interpreter that Neely “tried really hard to break free,” first endeavoring to pull Penny’s arms off his neck — until another passenger pinned them down — and then moving his legs.
Then, “in a moment, he stopped moving,” Vázquez told jurors.
He testified that he’d shortened the version of the video that he posted on social media, cutting about a minute at the beginning where Penny and Neely weren’t moving much. Like Rosario, he also made his video after the train had stopped in the station.
The defense also challenges medical examiners’ finding that the chokehold killed Neely.
