Judge dismisses manslaughter charge against Daniel Penny as jury continues deliberations

Judge Maxwell Wiley on Friday granted the Manhattan District Attorney's Office's motion to dismiss the most serious charge of second-degree murder against Daniel Penny, who faces trial in the strangulation death of Jordan Neely on the New York subway in 2023.

Wiley's decision clears the way for the jury, which has been deliberating for four days, to consider a lesser charge of criminally negligent homicide. Earlier, the judge had instructed the jury not to reach a verdict  on that charge until they had made a decision on the second-degree manslaughter charge.

Wiley's ruling also came after the Manhattan jury deadlocked twice on the manslaughter charge.

During the day, Penny's defense attorneys unsuccessfully renewed their motion for a mistrial.

Penny, 26, now faces a single count of criminally negligent homicide for Neely's death and thus a maximum prison sentence of four years (far less than the maximum 15-year sentence for involuntary manslaughter). The defense had objected to the prosecution's motion to dismiss the first count.

In his decision, Judge Wiley agreed with the prosecutors' argument that dismissing the first count of involuntary manslaughter eliminates the defense's concern about a commitment verdict. The judge accepted in his rationale that his decision is rather atypical, as this is a very unique manslaughter case.

According to the judge's directions, Penny could not have been convicted on both charges anyway.

In his new directions, Wiley told the jury that the second-degree manslaughter charge was dismissed and, therefore, they can now consider the remaining charge of criminally negligent homicide.

"What that means is you are now free to consider Count 2. Whether that makes any difference or not, I have no idea," the judge told the jury, whose members will take a break this weekend and return Monday morning to continue deliberating on the remaining charge.

If Penny is found guilty, it will then fall to the judge to decide whether or not to send him to prison.