Daniel Penny is fighting to suppress videos in which he tells police how he fatally put Jordan Neely in a chokehold

Recordings of Daniel Penny's statements to the police after placing Jordan Neely in a fatal chokehold aboard a subway car — in which he called the victim a “crackhead” — were shown in court Thursday.

Penny's defense wants the prosecution not to show the videos to the jury his upcoming trial for manslaughterwill not be released publicly unless Judge Maxwell Wiley of the Manhattan Supreme Court admits them into evidence. The judge will consider requests from both sides before the jury selection is scheduled Oct 21.

Penny, 25, a former Marine from Long Islandwillingly participated in an interview with detectives from the 5th Precinct following the chokehold incident on May 1, 2023 that claimed the life of 30-year-old Neely. Penny waived his right to remain silent and the presence of an attorney, the footage shows.

He said he boarded a northbound F train at Jay St.-MetroTech in Brooklyn and Neely was at the Second Ave stop. got into his car in the East Village of Manhattan. Penny said Neely threw on a windbreaker as the doors closed and began shouting threateningly at the passengers, saying something about “ginger ale and Sprite.”

Penny disparagingly described Neely as an “idiot” and said the victim turned his back on him when Penny “just cornered” him to “de-escalate” the situation.

“I'll take him down, he's squirming and stuff,” Penny said. “It seems like he’s resisting.”

Asked several times about his method of restraint, Penny said he applied pressure when the submissive Neely got “a little bit of energy” and suggested a chokehold on the two detectives.

“When he starts to squirm, I hold him tighter,” Penny said.

Wearing a mustard-colored jacket with a hoodie underneath and a baseball cap, Penny appeared relaxed in the footage, which was taken about two hours after the incident.

“I just felt like this guy was going to kill people,” he said.

Prosecutors want to show the footage to jurors to bolster their argument that Penny acted recklessly and disregarded signs that he put Neely's life at risk. At a preliminary hearing Thursday, they called to the stand investigators who interviewed Penny and some officers who responded to the scene.

However, Penny's lawyer Thomas Kenniff argued that the interview took place at the station was supposed to be suppressed because Penny was not lawfully imprisoned, and accused the authorities of manipulating him into believing he had to talk to them.

Kenniff also objected to police-worn body camera footage of Penny's comments to police in the subway station, saying: “I had it pretty well. I was in the Marine Corps,” among other things.

The defense played police bodycam footage of straphangers recounting what they saw. Kenniff said the footage was recorded while police were keeping Penny “on hold” at the station. Two subway riders quoted Neely as saying he didn't care if he died and went to prison. One woman said Neely “terrified the whole train.” No one said Neely touched any of the passengers.

Prosecutors in Manhattan District Attorney Alvin Bragg's office said it was “clear” that Penny knew he could leave the precinct, noting he was never handcuffed or patted down by officers. They also want to prevent defense attorneys from focusing on what they say is Neely's history of drug use and mental health issues an attempt to “denigrate the victim’s character so that the jury will invalidate his life.”

Penny has pleaded not guilty to manslaughter and involuntary manslaughter and could face significant prison time if convicted.

Viral Footage of the final stages of the incident shows Penny with his arm wrapped tightly around Neely's neck and his legs wrapped around his body for about four minutes, briefly assisted by two men, on the subway floor as it stopped at the Broadway-Lafayette St. station.

Penny claimed to investigators that he relented when two fellow passengers came to his aid, contradicting a widely seen bystander video showing him continuing to hold an unconscious Neely.

Neely was later pronounced dead at the hospital. The city's coroner determined his cause of death to be homicide, and Penny was arrested 11 days after the incident and indicted by a grand jury. He is currently out on a $100,000 bond.

The delay between Neely's death and Penny's arrest sparked citywide protests over the inexplicable killing of a poor and unarmed black man in broad daylight. Prominent Republicans rushed to Penny's defense, praising him as a good Samaritan and crowdfunding more than $3 million in his defense.

Bodycam footage played in court shows police officers, who administered Narcan and attempted resuscitation on Neely at the scene, searched the unconscious man's pockets in the train car and found a muffin.

The victim, who grew up in Manhattan and New Jersey, was homeless and struggled with severe mental illness in his short lifeaccording to his loved ones. His mother was brutally murdered when he was 14. In happier moments he was known to many New Yorkers as a passionate underground street artist and Michael Jackson tribute artist.

In Penny's interview with investigators, he said he did not try to hurt Neely and that he was not “trained” that way, referring to his military service.

“These guys are on the train all the time,” Penny said, but added that Neely seemed threatening. He quoted the victim as saying he would “kill anyone,” but Penny later said he didn't know if those words were used or if Neely had touched anyone.

Wiley is expected to make a decision on the applications in the coming weeks.

Originally published: October 3, 2024 at 6:29 p.m