Manhattan prosecutors doubled-down Wednesday on their controversial decision to bring manslaughter charges in the subway chokehold death of Jordan Neely — arguing ex-Marine Daniel Penny should have known he was about to kill the homeless man considering his military training and warnings from worried bystanders.
The statements were included in a response to an October filing by defense lawyers that sought to dismiss the case — with prosecutors stressing that Penny, 24, allegedly directly killed Neely when he laced his arms around the troubled homeless man’s neck for six minutes inside the subway car.
“The evidence before the grand jury establishes that Jordan Neely transitioned from life to the throes of death during the precise moments that he was being held in a chokehold by the defendant,” wrote Joshua Steinglass, the assistant district attorney handling the case,
He argued that there was clear proof Penny “caused Mr. Neely’s death.”
The Manhattan District Attorney’s Office also pushed back on a number of statements Penny’s defense lawyers made in their motion, which sought to portray Neely, a 30-year-old with a history of mental health problems, as a true threat to the other passengers riding the F train the day of the encounter.
Among these was their contention that Penny couldn’t be held accountable for killing Neely because his death was “not foreseeable.”
“The notion that death is not a foreseeable consequence of squeezing someone’s neck for six minutes is beyond the pale,” Steinglass wrote — adding that the grand jury saw “considerable evidence” that Penny was trained to use the dangerous chokeholds by the US Marines.
“The defendant’s own trainer testified that even though ‘chokes’ are taught as a means of non-lethal restraint, students are specifically cautioned during training that a choke can be fatal to the person being held,” the filing said.
Even if they had not been, the forward to the Marine Corps Martial Arts Program manual clearly states that the “[t]echniques described in this manual can cause serious injury or death,” Steinglass wrote.
“This training helps support the notion that the defendant was aware of and consciously disregarded a substantial and unjustifiable risk that death would occur as a result of his prolonged use of a chokehold,” the filing said.
One witness said they were initially grateful for Penny’s intervention, but thought the “nature and duration of the hold verged on overkill,” Steinglass wrote.
“The hold seemed so unnecessary at that point that an eyewitness can be heard on video urging the defendant to let go of Mr. Neely and warning the defendant that ‘If you don’t let him go now, you’re going to kill him,’” according to the court document.
One witness said they saw a “thick and pinkish substance” spill from Neely’s mouth as soon as Penny released him, the filing states.
The DA’s office also skewered the defense’s contention that Dr. Cynthia Harris — the medical examiner who inspected Neely’s corpse — never gave the grand jury concrete evidence that the former Michael Jackson impersonator died from asphyxiation due to Penny’s chokehold.
Instead, she “opined generally” about how someone could die of a chokehold, which the defense said only amounted to conjecture.
Steinglass called this “simply untrue.”
Harris told the grand jury that she saw scrapes and bruises which to her “were an indication that there had been trauma to his (Neely’s) neck,” Steinglass wrote.
She also testified that there was bleeding or hemorrhaging in some of Neely’s neck muscles that indicated there’d “been trauma involving a significant amount of force applied to his neck.”
And she pinpointed a moment in a video recording of the strangulation where Neely stopped moving intentionally.
“Dr. Harris explained that the movements after that point are best described as ‘twitching and the kind of agonal movement that you see around death,’” Steinglass wrote.
Penny, a former infantry squad leader, has been indicted on charges of second-degree manslaughter and criminally negligent homicide for Neely’s death in the caught-on-camera, lightening-rod case.
He remains free on $100,000 bail, and faces up to 19 years behind bars if convicted.
Penny has said he didn’t mean to kill Neely when he grabbed him from behind on May 1 — but he felt he had to step in to protect the other passengers because Neely was throwing trash and threatening them.
In their motion to dismiss, defense attorneys painted Neely as a chaotic storm who made his presence known as soon as he stepped onto the subway car that afternoon.
But prosecutors said witnesses varied in their assessments of how dangerous Neely actually was, with several testifying that the erratic man wasn’t much different than other loud vagrants they’d encountered in the Big Apple.
“For me, it was like another day typically in New York,” one witness said. “That’s what I’m used to seeing.”
Even Penny himself didn’t seem worried at first, according to his interview with cops after the fact — he told officers that he “wasn’t really paying attention” because Neely was “just a crackhead,” according to the DA’s office’s filling.
“He’s like, ‘If I don’t get this, this, and this, I’m gonna, I could go to jail forever,’” Penny told investigators, the court document states. “He was talking gibberish, you know, but … I don’t know. These guys are pushing people in front of trains and stuff.”
The Long Island native recognized that Neely wasn’t armed and hadn’t touched anyone, but said he intervened after Neely’s tirade because he considered it threatening, Steinglass wrote.
Police cut Penny loose after they interviewed him — but Steinglass said cops “were not yet in possession of any video of the encounter.”
Penny was arrested about two weeks later, after footage of the encounter surfaced and drew outrage.
The DA’s office filing also rebutted the defense’s contention that Penny’s statements should be suppressed because they were illegally obtained — Steinglass wrote that they were “lawfully obtained” and he denied all allegations to the contrary.
He also said the warrants for Penny’s electronic devices and cloud storage accounts were not overly broad lacking in particularity, as the defense said.
On Wednesday, Thomas Kenniff, one of Penny’s attorneys, told The Post that the defense team would reply in its own court filing.
“We have received the District Attorney’s opposition to our motion to dismiss this indictment, and we look forward to submitting our written reply,” Kenniff said in an email.
