The judge agreed to dismiss the top count of manslaughter against Penny on Friday and directed the panel to start deliberating Monday on the lesser charge, which carries a lighter punishment.
“Whether that makes any difference or not, I have no idea. But I’m going to direct you to focus your deliberations on count two,” Judge Maxwell Wiley said, telling them to “go home and think about something else.”
Penny placed Jordan Neely in a chokehold for about six minutes in May 2023 after Neely began acting erratically on a subway car. During the monthlong trial, the 26-year-old's lawyers argued he put his own life on the line to protect other passengers after Neely threatened violence against passengers.
The jurors began deliberating Tuesday and at the time were told they needed to reach a verdict on the manslaughter count before they could consider criminally negligent homicide. But on Friday, they told the judge they were deadlocked on the top charge, and remained so even after Wiley urged them to keep trying.
Manslaughter involves recklessly causing another person’s death and carries a possible sentence of up to 15 years behind bars. Criminally negligent homicide involves a defendant engaging in “blameworthy conduct” that they failed to perceive would contribute to a risk of death. It carries punishments ranging from probation to up to four years imprisonment.
