Penny Minimized Duration of Chokehold During Questioning, Video Shows

In an interview room in the Police Department’s Fifth Precinct last year, two detectives interviewed Daniel Penny two hours after he choked a homeless man to death in a subway car.

In a video of the interview shown in State Supreme Court in Manhattan on Thursday, Mr. Penny told the detectives he stepped in on May 1, 2023, because he felt that the homeless man, Jordan Neely, was acting erratically and “was absolutely killing someone” that day.

On the day of his death, Mr. Neely boarded a northbound train at the Second Avenue station and immediately began to scream, witnesses said.

Mr. Penny, who faces charges of manslaughter and criminally negligent homicide, told the investigators that he had taken Mr. Neely to the ground. Each time he felt a “burst of energy,” Mr. Penny said, he held Mr. Neely more steadily and continued to do so until two men helped pin Mr. Neely down.

“As soon as those guys came in and held him, I let go,” Mr. Penny told the detectives, throwing up his hands and leaning back in his chair.

But a four-minute video made by bystanders from the scene on an F train in Manhattan shows that Mr. Penny in fact continued to hold on. The video shows Mr. Penny with his arms around Mr. Neely’s neck and his legs wrapped around his body. Mr. Neely struggled against Mr. Penny’s restraint, as the other men stepped in. They held on until 50 seconds after Mr. Neely became motionless.

In total, prosecutors said, Mr. Penny had Mr. Neely in a chokehold for about six minutes, even after the subway car had stopped and the doors had opened.

Mr. Penny, who is from Long Island, was charged last year by the Manhattan district attorney’s office, and jury selection for his trial is scheduled to begin on Oct. 21. Wearing a gray suit, purple tie and white shirt, he sat quietly in court on Thursday, looking straight ahead, as his lawyers asked a judge to suppress the comments he made to officers at the subway station and later at the precinct house on the day Mr. Neely died.

Mr. Penny cooperated with officers, even going back to the Fifth Precinct to speak with them, his lawyers said in court filings. His statements followed what they argued was an illegal arrest that made the statements inadmissible. Prosecutors argue that the comments are admissible.

In several clips of police body-worn camera videos played in court on Thursday, Mr. Penny wore a dark baseball cap and a tan jacket over a dark hoodie, which appear to be the same clothes he was wearing in the bystander video. He repeatedly tells officers how he put Mr. Neely in a chokehold and held him down.

As officers arrive and find Mr. Neely sprawled on the floor of the subway car, unconscious, one asks: “How did he end up in this condition?”

Mr. Penny, standing close by and watching, can be seen on an officer’s body-worn camera responding, “I just put him out,” and holding up his hands in an X, crossed in front of him.

At the precinct later that day, Mr. Penny told detectives, “I’m not trying to kill the guy,” but said he had been concerned that Mr. Neely, whom he had referred to as a “crackhead” and a “crazy person,” would hurt someone.

Mr. Penny’s lawyer, Thomas A. Kenniff, argued on Thursday that all the statements Mr. Penny made after one of the officers, Sgt. Carl Johnson, had kept him from leaving the subway car were unlawfully obtained and legally “poisoned.”

“The damage had already been done by the time he had gotten to the precinct,” he said.

Dafna Yoran, an assistant district attorney, said that Mr. Penny was not arrested that day and was free to leave at any time. Throughout the hearing on Thursday, prosecutors asked the officers if they had handcuffed Mr. Penny, and they answered no.

Ms. Yoran said that the defendant himself believed that he wasn’t arrested, referring to a point when Mr. Penny asked detectives how long his interview would take, telling them that he had a test.

“But I’m not detained or anything,” he said.

The judge in the case, Maxwell T. Wiley, said he expected to make a ruling on the admissibility issue by Friday.

Mr. Kenniff also raised the defense’s plan to call a psychiatrist to discuss Mr. Neely’s mental illness, treatment history and chronic use of K2, a synthetic drug. He said the request for Mr. Neely’s medical records to be admitted was not to “disparage” him, but because the “public has a right to have eyes on this case, to see what is actually going on here.”

Mr. Neely, 30, had been struggling with his mental health for years. He was on a roster informally known as the Top 50, a list of homeless New Yorkers in a city of eight million who stand out for the severity of their troubles and their resistance to accepting help.

Prosecutors have argued that Mr. Neely’s prior acts and mental history are irrelevant to the case. They have asked that his health records not be admitted as evidence, or heavily limited if they are, and that the judge bar some experts whom the defense has said it wants to call to the witness stand.

The testimony of a psychiatrist the defense wants to call as a witness should be excluded, prosecutors argued, because state law holds that “a deceased victim’s prior bad acts and psychiatric history are not admissible unless they are relevant to an issue at trial.”

In court papers, prosecutors called the defense’s request “a transparent attempt by the defense to smear the victim’s character so that the jury will devalue his life.”