Daniel Penny applied 6-minute chokehold on Jordan Neely as witness accounts differ on threat: Prosecutors

Daniel Penny put Jordan Neely in a six-minute fatal chokehold on a New York City subway train that "continued well past the point at which Mr. Neely had stopped purposeful movement," prosecutors said Wednesday in a new court filing that opposed the defense's motion to dismiss the case.

The former U.S. Marine is charged with second-degree manslaughter and criminally negligent homicide in connection with the death of Neely, who was homeless at the time, on the F train on May 1.

Penny has pleaded not guilty to the charges and his attorneys asked the judge to dismiss the case because they allege Neely was "insanely threatening" aboard the train.

Prosecutors said eyewitness accounts "differed sharply" in their assessments of the threat posed by Neely when Penny acted.

"It is certainly true that several of the passengers testified that they were fearful," assistant district attorney Joshua Steinglass wrote in the filing. "Omitted from the defense submission, however, are the accounts that undermine the notion of rampant and universal panic."

Steinglass added, "As one witness put it, 'for me, it was like another day typically in New York. That's what I'm used to seeing. I wasn't really looking at it if I was going to be threatened or anything to that nature, but it was a little different because, you know, you don't really hear anybody saying anything like that.'"

Less than 30 seconds after the chokehold started, the train arrived at the Broadway-Lafayette Station, prosecutors said. "Passengers who had felt fearful on account of being trapped on the train were now free to exit the train," Steinglass said. "The defendant continued holding Mr. Neely around the neck."

Video of the deadly interaction began nearly two minutes later. The full-length video is 4 minutes and 57 seconds long. "The video begins with the defendant holding Mr. Neely in a chokehold on a relatively empty train while two other male passengers stand close by. Within seconds, one of those passengers grabbed and held Mr. Neely's right arm, further immobilizing him," Steinglass said.

Three minutes and ten seconds into the video, Neely ceases all purposeful movement, prosecutors said. "After that moment, Mr. Neely's movements are best described as 'twitching and the kind of agonal movement that you see around death,'" the prosecutor said.

Penny's chokehold lasted an additional 51 seconds, according to the video.

The defense argued Penny had no intent to kill, but Steinglass said second degree manslaughter only requires prosecutors to prove Penny acted recklessly, not intentionally.

"The defendant held Jordan Neely on the ground with his arm wrapped around Mr. Neely's neck. He did so with enough force and for a long enough period to kill Jordan Neely," Steinglass said.

"Not only did the chokehold last some six minutes, but it continued for nearly a minute past the point where Mr. Neely ceased all purposeful movement," the prosecution's filing said. "The hold seemed so unnecessary at that point that an eyewitness can be heard on video urging the defendant to let go of Mr. Neely and warning the defendant that 'if you don't let him go now, you're going to kill him.'"