NEW YORK CITY—Witnesses to the May 2023 incident in which Marine Daniel Penny placed Jordan Neely, a homeless man with a history of mental illness, into a chokehold on a Manhattan-bound subway train and caused his death, testified in a Manhattan courtroom on Nov. 4 about what they saw and heard that day.
One witness, Yvette Rosario, said the incident made her far more frightened than anything else she had experienced on the subway in her 10 years of living in New York City. Jurors watched a portion of a video of the incident and its aftermath taken with Rosario’s cellphone.
After seating a full jury last week, the trial got into full swing on Nov. 1 in Judge Maxwell Wiley’s courtroom in the criminal court building at 100 Centre St. in lower Manhattan.
When the trial, which the judge said is likely to last about six weeks, comes to an end, the jurors will be asked to decide whether to convict Penny on charges of manslaughter and criminally negligent homicide. At the heart of the case is whether Neely was simply a desperate person who wanted attention and help, as prosecutors maintain, or posed an immediate danger to others on the Manhattan-bound F train, as Penny’s defense insists.
In a brief initial phase on the morning of Nov. 4, Penny’s lawyers sought to persuade the judge that the prosecution’s opening statement depicting Neely as the kind of ordinary homeless person whom urban residents encounter daily was wrong and prejudicial to the jury.
Given Neely’s documented history of mental health problems and violent incidents leading up to, and earlier on the day of, the fatal encounter, such a characterization “creates a very false narrative for the jury,” Thomas Kenniff, a lawyer for Penny, said.
Wiley said he did not think that the prosecution had in any way hampered the defense from making whatever arguments it pleased but said he would take the defense’s motion under advisement.
The courtroom then heard from Rosario, 19, who was on the train with a friend when the incident occurred. Under direct examination from government lawyers, Rosario, who is from the Dominican Republic, said she took the subway almost every day to travel to and from school.
On May 1, 2023, Rosario was on the F train heading toward her destination, at the stop at Broadway-Lafayette, where SoHo borders Greenwich Village. At the Second Avenue station, she said, the doors had almost closed when a man whom she identified as Neely stuck his hand in to prevent the doors from closing and then came inside.
“Once he came in, he took off his sweater, and while he was taking off his sweater, he stated how he was homeless, he didn’t have any money, and he didn’t care about going back to jail,” Rosario said.
She recalled Neely throwing his sweater hard onto the ground and moving quickly up to one of the poles in the subway car. Rosario said Neely’s tone frightened her.
“I was very nervous and was telling my friend I was going to pass out. ... I got scared by the tone of how he was saying it,” Rosario stated. “I have seen situations, but not like that.”
She recalled putting her head on her friend’s chest and wishing the train’s doors would open again so she could get off. She said the next thing she remembered was the sound of someone falling to the floor, and then looking up to see Penny and Neely struggling.
“I saw them both on the floor, and then he was holding him, the white guy; he had him like this,” Rosario said, approximating a chokehold with her arms and hands.
Under cross-examination from Kenniff, Rosario repeated much of her account and emphasized that the incident stood out from other tense and unpleasant things that she had seen on the subway in the past.
The testimony of another passenger, Juan Alberto Vazquez, who spoke through an interpreter, confirmed much of Rosario’s testimony. Vazquez said he had witnessed some of the encounter and heard other parts of it from his position sitting behind a couple riding the train.
The trial resumes on Nov. 7 with more witness testimony.
