A jury will deliberate a lesser charge for Daniel Penny in the New York City subway chokehold death of Jordan Neely after the group couldn't reach a unanimous verdict on a manslaughter charge, CNN reports.

Penny initially faced charges of second-degree manslaughter and criminally negligent homicide in the May 2023 death of Neely, a 30-year-old Michael Jackson impersonator who was homeless. However, a 12-person jury was unable to come to a verdict Friday (December 6) on the manslaughter count, which came with a potential 15-year prison sentence.

Judge Maxwell Wiley and Manhattan prosecutors agreed to dismiss Penny's manslaughter count to pave the way for the jury to consider the remaining charge of criminally negligent homicide on Monday (December 9). If convicted, Penny could face up to four years in prison.

The judge declined the defense's request for a mistrial.

“What that means is you are now free to consider Count 2,” Wiley told the jury. “Whether that makes any difference or not, I have no idea.”

On May 1, 2023, Penny confronted Neely after he allegedly shouted at passengers that he was hungry, thirsty, and didn't care whether he died. The former Marine forced Neely onto the ground and put him in a chokehold until he stopped breathing.

Penny and some of the other subway passengers claimed that Neely, who struggled with depression and schizophrenia, also shouted that he was ready to kill. The ex-Marine told police that he had put Neely in "a choke" to ensure the safety of the passengers.

Prosecutors said Penny knew his actions could kill due to his military training, while his defense lawyers argued he used a "civilian restraint" to protect passengers from Neely.

"We are here today because the defendant used way too much force for way too long in way too reckless of a manner,” prosecutors said in closing arguments.

“I wasn’t trying to injure him,” Penny previously told NYPD investigators. “I’m just trying to keep him from hurting anybody else. He was threatening.”

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