The jury deliberated for more than 24 hours across five days before reaching the verdict.
The jury in the Penny trial continued deliberations Monday over whether he committed criminally negligent homicide when he placed Neely in a chokehold on a subway car last year, after the jury was deadlocked on the more serious charge of manslaughter last week.
At the request of prosecutors on Friday, Judge Maxwell Wiley dismissed the second-degree manslaughter charge - which carried a maximum 15-year sentence - and directed the jury to turn to the lesser charge of criminally negligent homicide, which has a four-year maximum sentence. Neither crime has a minimum sentence. Penny pleaded not guilty to both charges.
"What that means is you are now free to consider count two. Whether that makes any difference or not, I have no idea," Wiley said before sending the jury home for the weekend.
Prosecutors allege that Penny killed Neely, a 30-year-old homeless man who had previously been a Michael Jackson impersonator, when he placed him in a six-minute-long chokehold on a subway car in May 2023, holding Neely for at least 51 seconds after his body went limp. Assistant district attorney Dafna Yoran argued Penny knew his actions could kill Neely but continued to hold him in a chokehold for "way too long" and "didn't recognize his humanity."
The city's medical examiner concluded Penny's chokehold killed Neely. The defense argued Neely died from a genetic condition and the synthetic marijuana found in his system.
Defense attorney Steven Raiser told jurors that Penny "acted to save" subway passengers from a "violent and desperate" Neely, who was acting erratically and "scared the living daylights out of everybody." Raiser argued that Neely was fighting back, and Penny continued to hold on because he feared he would break free, though he didn't intend to kill Neely.
Wiley denied a new motion for a mistrial made Monday morning by Penny's defense lawyers, who argued that the dismissal of the manslaughter charge would influence the jury's verdict.
"There is no way to cure the legal error that we believe very strongly happened on Friday, and we are renewing our motion for a mistrial on the remaining count two," said Thomas Kenniff, who said the dismissal could result in a "coercive verdict."
Wiley disagreed, promptly denying the motion like he did on Friday when the defense unsuccessfully argued twice for a mistrial.
To prevent the possibility of influencing the jury, Wiley proposed issuing a new instruction to the jury explicitly stating that the court is "not directing you to any particular verdict."
Wiley also offered to give the jury an instruction to ignore chants from protesters outside the courthouse - including "Justice for Jordan Neely," "Daniel Penny subway stranger" and "If we don't get no justice, they don't get no peace" - which the defense team declined because it might bring more attention to the chants.
For now, the chants have quieted down, and they are no longer audible in court. If they resume, Judge Wiley said he would consider delivering an instruction or moving the jury to another deliberation room.
Last week, the jury spent more than 23 hours across four days deliberating whether Penny, a 26-year-old former Marine and architecture student, committed second degree manslaughter before repeatedly signaling that they could not reach a unanimous verdict.
Wiley ultimately granted prosecutors' request to dismiss the first count while Penny's defense attorneys unsuccessfully pushed for a mistrial, arguing that continued deliberations could lead to a "coercive or a compromised verdict" by "elbowing" jurors to convict on the lesser charge.
Manslaughter would have required proving that Penny acted recklessly and grossly deviated from how a reasonable person would behave, while proving criminally negligent homicide requires the jury to be convinced that Penny engaged in "blameworthy conduct" that he did not consider would lead to the risk of death.
Outside court, protesters and counter protesters have assembled, with "say his name" chants slightly audible in the 13th floor courtroom. As Penny entered the courthouse this morning, he was met with competing chants of "murderer" and "not guilty."