Neely’s death sparked protests, while others embraced Penny as a vigilante hero.
A judge authorised Penny’s release on bond and ordered him to surrender his passport and not to leave New York without approval. Prosecutors said they are seeking a grand jury indictment. Penny is due back in court on July 17.
Penny didn’t speak to reporters as he arrived at a Manhattan police station with his lawyers on Friday morning, nor did he respond to questions shouted by reporters as he was led from the police precinct house in handcuffs several hours later.
Inside the courtroom, Penny faced straight ahead, his hands still cuffed. He spoke softly, offering one-word answers to Judge Kevin McGrath as his lawyer, Steve Raiser, placed an arm around his shoulder.
Penny’s lawyers have said he was acting in self-defence when he pinned Neely to the floor of the subway car with the help of two other passengers and held him in a chokehold for several minutes.
A freelance journalist who recorded Neely struggling to free himself, then lapsing into unconsciousness, said he had been shouting at passengers and begging for money aboard the train but had not gotten physical with anyone.
Penny’s lawyers have said he was “threatening” passengers but haven’t elaborated.
Neely’s death has raised an uproar over many issues, including how those with mental illness are treated by the transit system and the city, as well as crime, race and vigilantism. Penny, who is white, was questioned by police in the aftermath but was released without charges. Neely was Black.
Thomas Kenniff, one of Penny’s attorneys, said the veteran didn’t mean to harm Neely and “is dealing with the situation, like I said, with the sort of integrity and honour that is characteristic of who he is and characteristic of his honorable service in the United States Marine Corps.”
Donte Mills, a lawyer for Neely’s family, said Neely wasn’t harming anyone.
“There was no attack,” Mills said at a news conference on Friday.
“Mr. Neely did not attack anyone. He did not touch anyone. He did not hit anyone. But he was choked to death.” Penny, he said, “acted with indifference. He didn’t care about Jordan, he cared about himself. And we can’t let that stand.”
Neely’s father, Andre, wept as another family lawyer, Lennon Edwards, recounted the last moments before Penny tackled Neely to the ground and put him in a chokehold.
“What did he think would happen?” Mills asked.
Friends of Neely said the former subway performer, remembered by some commuters for his Michael Jackson impersonations, had been dealing with homelessness and mental illness in recent years.
Neely had been arrested multiple times and had recently pleaded guilty for assaulting a 67-year-old woman leaving a subway station in 2021.
Mills said Neely’s outlook changed after his mother was killed by her boyfriend in 2007. Through his struggles, Mills said, Neely found joy in singing, dancing and bringing a smile to other people’s faces.
“No one on that train asked Jordan: ‘What’s wrong, how can I help you?'” Mills said, urging New Yorkers in a similar situation: “Don’t attack. Don’t choke. Don’t kill. Don’t take someone’s life. Don’t take someone’s loved one from them because they’re in a bad place.”
The Manhattan district attorney’s office had investigated the case for several days before deciding to file charges, in part to try to learn what happened aboard the train in the moments before Penny moved to restrain Neely. Prosecutors did not immediately explain why they decided criminal charges were warranted.
Neely’s death prompted protests in the city. On Wednesday, New York City Mayor Eric Adams, who had earlier said the investigation needed time to play out, gave an address in which he said Neely’s death shouldn’t have happened.
A second-degree manslaughter charge in New York will require the jury to find that a person has engaged in reckless conduct that creates an unjustifiable risk of death, and then consciously disregards that risk.
The law also requires that conduct to be a gross deviation from how a reasonable person would act in a similar situation.
The charges could carry a maximum penalty of 15 years imprisonment, though any jail term could also be far shorter.
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