Prosecutors moved to dismiss the more serious charge of second-degree manslaughter against Daniel Penny on Friday in his trial over the chokehold death of Jordan Neely on a New York City subway last year, after a Manhattan jury said they were deadlocked twice on the charge.

Penny’s defense attorneys maintained their motion for a mistrial.

Judge Maxwell Wiley has not yet ruled on the motions – the parties will reconvene after a break Friday afternoon. Before the break, lead prosecutor Dafna Yoran indicated her office may be willing to drop the second-degree manslaughter charge if the jury can move on to consider the lesser charge of criminally negligent homicide.

Judge Maxwell Wiley had instructed the jurors to keep deliberating after they were deadlocked on the charge earlier in the day. Penny’s defense attorneys objected and moved for a mistrial over the deadlocked panel of 12 Manhattanites.

“It’s not time for a mistrial,” Wiley told the attorneys outside the presence of the jury, after the jury first reported being deadlocked.

The jury sent its first note marking its impasse after 16 hours of deliberating since they got the case Tuesday afternoon and the second note three hours later.

The defense renewed its mistrial motion after the latest jury note indicating the panel remains deadlocked.

One male juror shook his head looking down as Wiley instructed the jury to “be flexible” as they move forward in deliberations.

Penny, 26, a former Marine, faces one count of manslaughter in the second degree and one count of criminally negligent homicide in Neely’s death.

Penny cannot be convicted of both charges, according to the judge’s instructions to the jury. Jurors can only consider the criminally negligent homicide charge if they find Penny not guilty of second-degree manslaughter.

The Manhattan District Attorney’s Office agreed with the judge’s decision to instruct the jury to keep considering the manslaughter charge, while defense attorney Thomas Kenniff argued they were hopelessly deadlocked.

“The jury has been deliberating for roughly 20 hours over four days on what is in many ways a factually uncomplicated case, an event that transpired over minutes on video,” Kenniff said.

If convicted, Penny faces up to 15 years in prison on the manslaughter charge or up to four years on the criminally negligent homicide charge, or the judge could choose not to sentence Penny to prison time.

In a follow-up note to the judge, the jury asked for clarification on the instruction that they must determine whether Penny acted as a “reasonable person” in using physical force against Neely.

“We the jury request further clarification in the determination of whether a person reasonably believes physical force to be necessary,” the jury note said.

“We would like to better understand the term reasonable person.”

Wiley instructed the jury, “Ultimately what a reasonable person is, is up to you to decide.”

The judge also reiterated a section of the jury instructions pertaining to the legal parameters around physical force.

Neely, a 30-year-old street artist who struggled with homelessness, mental illness and drugs, had entered a New York City subway car on May 1, 2023, and began acting erratically. He threw down his jacket and yelled at passengers that he was hungry and thirsty and didn’t care whether he died, witnesses said. Penny, a subway passenger, grabbed Neely from behind in a chokehold, forced him to the train floor and restrained him there for several minutes. When police arrived and Penny let go of the hold, Neely was nonresponsive.

Several minutes of the chokehold were captured on bystander video that quickly went viral. That video, as well as Penny’s interview with NYPD investigators explaining his actions and autopsy findings, were central pieces of evidence in the trial.

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

Prosecutors have said Penny acted recklessly by restraining Neely in a chokehold for so long, even after Neely stopped moving, while his defense has said he was acting to protect others from a threat.

The case has polarized NYC residents, many of whom have personal experiences with disorder on the subways, and raised broader questions about mental health, race relations and the line between protector and vigilante. Black Lives Matter protesters have added Neely’s name to its roll call of victims – including just outside the courthouse – while others have praised Penny’s efforts to try to protect others.

In closing arguments Monday, the defense argued Penny “was justified in the actions he took to protect the other riders.”

Neely “was on a collision course with himself” and Penny “acted when others could not,” defense attorney Steven Raiser said during his two-hour closing argument.

The defense also has challenged the medical examiner’s determination Neely died from the chokehold and suggested the charges were brought because of “a rush to judgment based on something other than medical science.”

Prosecutor Dafna Yoran, in her closing arguments, said Penny intended to protect fellow passengers but “he just didn’t recognize that Jordan Neely’s life too needed to be preserved.”

“We are here today because the defendant used way too much force for way too long in way too reckless of a manner,” she said.

What happened at the trial

The trial began with jury selection in late October and has featured testimony, video and 911 calls from subway riders, responding police officers and martial arts and medical experts.

The prosecution called more than 30 witnesses to the stand, including one man who helped restrain Neely’s arms during the struggle and testified he advised Penny to loosen his grip. “I’m going to grab his hands so you can let go,” Eric Gonzalez told Penny, according to his testimony.

Further, Gonzalez could be heard in video footage of the incident saying that Penny wasn’t “squeezing” Neely’s neck in the 51 seconds before he released the chokehold. Gonzalez also testified he initially lied to investigators about what he saw and did on the subway out of fear he would be “pinned” for the killing. Prosecutors promised not to charge him in the case, he testified.

In addition, the Marine Corps martial arts expert who trained Penny in chokeholds testified that Penny was aware the holds could be lethal.

Several subway riders testified they were terrified Neely was going to attack and that they were relieved when Penny put him in a chokehold and kept him there.

“Restraining him for the moment was a relief, but if he would have gotten up, he would have done what he would have done,” subway rider Caedryn Schrunk said.

The defense’s case focused on emphasizing Neely’s threatening behavior, character witnesses from Penny’s time in the US Marines and challenges to the medical cause of Neely’s death.

Penny served four years in the Marines as a sergeant, from 2017 to 2021, with his last duty assignment at Camp Lejeune in North Carolina, according to military records.

The city medical examiner who performed Neely’s autopsy, testifying for the prosecution, ruled the cause of his death was “compression of neck (chokehold).” She made that determination after performing an autopsy and watching the cell phone video on the subway but did not wait for the toxicology report, she testified.

The defense presented its own medical expert who said Neely died of a combination of factors, including a sickling crisis linked to his sickle cell trait, a schizophrenic episode, the struggle and restraint by Penny and K2 intoxication.

The jury began deliberating on Tuesday afternoon. Over the first two days of deliberations, jurors sent several notes to the court requesting to review video evidence and rehear parts of the jury instructions and testimony during the trial.

Separately, Neely’s father filed a lawsuit in New York Supreme Court on Wednesday accusing Penny of assault, battery and causing Neely’s death. Andre Zachery, who is listed as the administrator of Neely’s estate, accused Penny of having caused the death “by the reason of the negligence, carelessness and recklessness.” The suit does not specify the amount of money the family is seeking.

Penny’s defense attorney Kenniff did not respond to a request for comment on the suit.

This is a developing story and will be updated.