Daniel Penny’s defense attorneys rested their case Friday with testimony about Jordan Neely’s open arrest warrant — and without calling the Marine veteran to the stand at his lighting-rod manslaughter trial.
Penny’s decision not to testify means that jurors will not hear him explain why he kept Neely — who witnesses said delivered an “unhinged” rant toward passengers on the Manhattan F train — in a nearly six-minute-long chokehold on May 1, 2023.
Penny won’t be taking the stand in his own defense. Steven Hirsch“This jury has heard from Mr. Penny. They heard from him before he had the opportunity to have an attorney. They heard him in the minutes and hours after this incident,” his lawyer, Thomas Kenniff, told reporters after court wrapped Friday.
Jurors were shown video of NYPD detectives interrogating Penny following the fatal encounter, where he said he felt compelled to intervene as Neely was “acting crazy” and threatening passengers after bursting through the doors of the uptown train.
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“He told them what happened, and he said all the same things, all the things in essence that the credible eyewitnesses testified — that Jordan Neely was terrifying,” Kenniff said.
“He believed like so many eyewitnesses that he was going to make good … He thought someone was going to get hurt, he thought someone was going to get killed and he acted,” the attorney said. “I don’t know how much the jury has to hear in that regard.”
The final witness called by the defense was a court clerk, Brian Kempf, who testified Friday about issuing an arrest warrant for Neely in February 2023 — just two months before his death on the subway floor.
The Post previously reported that Neely that February had agreed to intensive outpatient treatment as part of a plea deal with Manhattan prosecutors that spared him prison time for a 2021 assault.
But Neely, a 30-year-old former Michael Jackson impersonator who long suffered from mental health issues and had a history of drug abuse, left treatment — and a judge issued the warrant for his arrest the next day.
Kempf was one of about 10 witnesses called by the defense — including Dr. Satish Chundru, a medical expert, who testified that he believed Neely’s death was caused by a combination of factors, and not the chokehold.
Chundru’s testimony wrapped Friday with a blistering cross-examination by Assistant District Attorney Dafna Yoran, who tried to get him to walk back on his claim that Neely died from the “combined effects” of synthetic marijuana, schizophrenia and other factors.
He did acknowledge that Penny’s restraint played a role in the death — but claimed it was not why Neely died.
“Yes, the restraint played a role, but that’s a far different cry from saying he died from asphyxia from a chokehold,” Chundru said during his marathon day-and-a-half of testimony in Manhattan Supreme Court.
Penny faces up to 15 years in prison if convicted of manslaughter for the shocking caught-on-camera fatal encounter. NYC CourtsChundru’s findings were far different from those of the city medical examiner, Dr. Cynthia Harris, who performed Neely’s autopsy and was among some 40 witnesses called to the stand in by prosecutors.
The doctor, in testimony earlier this week, stood by her ruling that Neely’s death was caused by asphyxiation as a result of Penny’s chokehold.
Harris and other doctors at the Office of the Chief Medical Examiner believed that Neely’s death was caused by “asphyxia,” consistent with being choked, after seeing a journalist’s video of the homeless man “dying” with Penny’s arm wrapped around his neck, she said.
Over the course of the month-long trial, the jury of 12 Manhattanites also heard from witnesses who were on board the train during the fatal encounter.
Some of Penny’s relatives and friends took the stand to vouch for him, including his mom, Gina Flaim-Penny, who called her son an “honest person” and “empathetic and compassionate individual.”
Alexandra Fay, a childhood friend who grew up on the same block as Penny in West Islip on Long Island, said people always spoke “so highly” of her one-time neighbor.
“He was so kind. If anything he was extra kind … He always spoke up,” Fay said.
Penny could face more than a decade in prison if convicted. Alba Acevedo for NY PostClosing statements are expected to begin on Dec. 2.
Penny, 26, has pleaded not guilty to second-degree manslaughter and criminally negligent homicide.
He faces up to 15 years in prison if convicted on the top charge.
Prosecutors have argued that Penny held Neely for too long, including for more than five minutes after nearly all straphangers had left the subway car — and for 51 seconds after Neely’s body went limp.
Penny’s lawyers have said that his actions were justified to restrain Neely, who was threatening passengers, according to witnesses. In his first public comments weeks after the caught-on-video altercation, Penny told The Post that he felt no shame for his actions, which he described as having “nothing to do with race.”
“I’m deeply saddened by the loss of life,” he said at the time. “It’s tragic what happened to him. Hopefully, we can change the system that’s so desperately failed us.”



