MANHATTAN (CN) — A New York judge ruled Friday that a series of on-camera statements Daniel Penny made to police officers and detectives are admissible evidence in his upcoming manslaughter trial.
After Penny choked Jordan Neely to death on a Manhattan-bound F train in 2023, the ex-Marine told responding officers on the scene that he “just put him out,” while making a choking motion with his arms. He then accompanied the cops back to the Fifth Precinct in Chinatown, where he was questioned by detectives and said that he was “not trying to kill the guy.”
Penny’s attorneys sought to suppress those statements, claiming that officers never told Penny he was free not to cooperate with their investigation. New York Supreme Court Justice Maxwell Wiley disagreed.
“The court finds that the defendant’s statements were made voluntarily and upon probable cause,” Wiley ruled Friday in a two-page order.
Prosecutors and Penny’s defense attorneys met in court Thursday to play videos of the statements so the judge could assess their admissibility. Penny’s attorney Thomas Kenniff argued that his client cooperated with law enforcement only because the officers placed him under de facto arrest by forcing him to comply with their questioning.
“It would have been apparent to anyone in that situation that Mr. Penny was not simply free to walk away,” Kenniff said Thursday.
In one of those clips — bodycam footage from a responding police officer — Penny can be seen standing over Neely’s limp body on the subway car. The officer asked Penny what had happened, and Penny replied that Neely “threw shit” when he boarded the train and started threatening people.
“I just put him out,” Penny said.
Wiley ruled that the officer’s questions to Penny on the subway were “investigatory in nature” and there was no need to inform Penny of his right not to cooperate at the time.
“Here, the defendant responded to repeated basic investigatory questioning from several officers, some of whom were performing emergency tasks such as providing medical aid to an apparently unconscious person on at the scene,” Wiley wrote. “At one point on scene defendant was asked to provide his phone number, which would have indicated to a reasonable, innocent person that their continued cooperation to that point was voluntary at least to the extent that they would not be restricted beyond being accessible by telephone.”
Footage from Penny’s interview at the precinct is admissible, too, Wiley ruled. There, Penny likened Neely’s behavior to that of a “crackhead” and told the detectives that Neely was threatening to “kill everybody.” He described what was going through his mind when he got up from his seat to put an unruly Neely into the fatal chokehold.
“I wasn’t trying to injure him,” Penny said in the clip. “I’m just trying to keep him from hurting everyone else.”
Despite Kenniff’s arguments, Wiley ruled that the detectives’ questioning was “done without force or coercion or promises.”
Kenniff didn’t immediately respond to a request for comment on the ruling.
Thursday’s hearing was likely the final time Penny will appear in court until his trial, which is set to begin on Oct. 21. The footage shown in court that day will remain unreleased to the public for now, Wiley ruled, fearful of tainting the jury pool.
The trial is expected to be a divisive one. Penny, a 25-year-old white veteran from Long Island, has been hailed in certain right-wing circles as a good Samaritan. Meanwhile, some progressive advocates have denounced Penny’s behavior as an act of racist vigilantism and mourn the death of Neely, a 30-year-old Black man who was reportedly suffering from homelessness and mental illness when he was killed.
Penny faces charges of second-degree manslaughter and criminally negligent homicide. He pleaded not guilty in January.