Here’s what to know about the case as the trial begins.

What happened on the F Train

Passengers on the May 2023 train reported Neely was screaming and threatening other passengers when he boarded. 

Juan Alberto Vazquez, a freelance journalist, recorded parts of the incident. 

“He started screaming in an aggressive manner,” Vazquez told the New York Post. “He said he had no food, he had no drink, that he was tired and doesn’t care if he goes to jail. He started screaming all these things, took off his jacket, a black jacket that he had, and threw it on the ground.”

One witness testified to the grand jury that Neely had said, “Someone is going to die today.” 

Another witness, who was with her son during the encounter, testified before the grand jury that Neely was threatening the passengers by saying, “I want to go to Rikers; I want to go to prison.”

Penny’s attorneys wrote in their motion to dismiss Penny’s charges that Neely was “making half-lunge movements and coming within a half a foot of people.”

The former Marine then came behind Neely and put him into a chokehold for several minutes and lowered him to the ground. Other passengers on the train assisted in holding Neely down, and he became unconscious. 

Upon arriving at the Broadway-Lafayette Street/Bleeker Street station, the conductor called 911, but EMS was not able to revive Neely. Authorities did not find any weapons in Neely’s jacket pockets. 

What Penny is charged with

Eleven days after the deadly encounter, District Attorney Alvin Bragg charged Penny with second-degree manslaughter and negligent homicide. Penny pleaded not guilty, and he was released on a $100,000 bond.

Penny’s lawyers filed a motion to dismiss the charges, asserting that the medical examiner did not conclusively rule that Neely’s cause of death was asphyxiation. Toxicology reports show that Neely had K2 — a synthetic cannabinoid — in his system. Manhattan Supreme Court Justice Maxwell Wiley threw out the defense’s motion, stating that Neely’s death certificate was proof that Penny’s actions caused his death. 

If convicted, Penny could face between five and 15 years in prison for the second-degree manslaughter charge and up to four years for the negligent homicide charge.

Who was Jordan Neely?

The 30-year-old man was known for performing as a Michael Jackson impersonator on the streets of New York City. He suffered from severe mental health issues and was diagnosed with PTSD. He was in and out of Bellevue Hospital, and he was named in New York City’s Top 50 list for Homeless People at Most Risk.

Neely was previously arrested 42 times for evading fares, theft, and also assaulting three women. In 2021, he pleaded guilty to assaulting a 67-year-old woman leaving a subway station.

What evidence will be shared with the jury

Both the prosecution and the defense have attempted to prevent the inclusion of information and expert testimony in the trial. 

Judge Maxwell Wiley denied the prosecution’s request to exclude nearly 6,000 pages of Neely’s medical records, which reveal his history of mental instability. 

The expert witness testimony of Dr. Alexander Bardey, who would testify about Neely’s alleged abuse of the drug K2 that may have spurred his psychotic episode, would be permitted in the trial as well. 

“Their suggested introduction is a transparent attempt by the defense to smear the victim’s character so that the jury will devalue his life,” Assistant District Attorney Dafna Yoran wrote in a legal filing.

Penny’s attorney, Thomas Kenniff, said the testimony would “demonstrate that Mr. Neely was likely under the influence of K2 and experiencing a psychotic episode when he boarded the Queens-bound F train on May of last year.” 

As for the defense, the judge denied their motion to exclude Penny’s interview and video footage with the police upon his initial visit to the police station. 

In the video, Penny shows how he administered the chokehold.

The defense claims that Penny was being treated like a witness at the time, not as a suspect, so they do not want it included.

However, the judge denied the defense’s motion, citing that Penny was read his Miranda rights, and he decided to waive them to answer the questions.

When is the trial?

Jury selection for the trial will begin on Oct. 21.