Judge In Daniel Penny Trial Rejects Defense Motion For Dismissal

Authored by Michael Washburn via The Epoch Times,

Judge Maxwell Wiley on Nov. 25 declined to dismiss the case against former U.S. Marine Daniel Penny after hearing defense lawyers’ and prosecutors’ arguments without the jury present.

Penny is on trial for manslaughter and criminally negligent homicide related to the death of Jordan Neely on May 1, 2023.

The judge did agree to include a limiting instruction regarding witness testimony in his final instructions to the jury, which is set to begin deliberating on the controversial case next week after closing arguments set for Dec. 2.

The limiting instruction will tell the jury not to take into consideration any subjective opinions that witnesses may have let slip about the guilt or innocence of the defendant.

During oral arguments on Nov. 25, defense lawyer Thomas Kenniff sought to persuade the judge that legal precedent existed for dismissing the case against Penny, who simply exercised a lawful right to defend himself and others when Neely entered an uptown F train at Manhattan’s Second Avenue stop.

Citing a transcript of the police interview, Kenniff said: “So, on page 18, Mr. Penny tells the officers that Mr. Neely says, in some substance, ‘If I don’t get this and this, I’m going to go to jail forever.’

“After throwing his jacket, Mr. Neely says, ‘If I don’t get this and this, I’ll kill everyone, I am prepared to go to jail for life.’”

Kenniff also cited portions of the interview with Penny and described Neely “getting in people’s faces, and people getting out of the way.”

Later in the transcript, Penny states his frank concern that Neely would have harmed women and children on the subway.

Under direct examination from prosecutors on Nov. 8, one of those passengers, Lori Sitro, described the fear she felt for herself and her small son in the face of Neely’s aggressive and menacing conduct.

Sitro said she moved the little boy’s stroller in front of him to keep him safe.

Kenniff also cited the testimony of witness Derrick Clay, who had testified that he wondered what Neely might have in his pockets.

The defense lawyer also brought up the testimony of yet another witness, Yvette Rosario, who described feeling such terror as the scene unfolded that she thought she might pass out.

“I would submit that it’s overwhelming, from a subjective and an objective standpoint, that Mr. Neely was attempting to carry out a robbery.”

Kenniff then attempted to counter prosecution claims that Neely simply wanted food and water.

He said that, when someone demands food, that person does not actually expect others to pull a sandwich from a bag and offer it; rather, the demand is clearly for money to purchase whatever the person making the demand may be in need of.

Judge Wiley asked Kenniff for case law to support his arguments.

Kenniff cited the 1980 case of People v. Davis, which concerned a December 1978 incident where a court officer driving a bus in Brooklyn shot a man who got onto the bus, refused to pay the fare, behaved aggressively and menacingly, and attempted to rob the driver.

Kenniff acknowledged that there was “not a wealth of case law” in this area, but added: “I think what we have here with Mr. Neely is light years more immediate, more direct, more obvious than anything like that,” he said.

Jordan Neely in New York on May 12, 2023. Courtesy Mills & Edwards, LLP via AP

The Prosecution Responds

Prosecutor Dafna Yoran attempted to refute Kenniff’s characterization of what happened on May 1, 2023.

She acknowledged that Neely had larcenous intent and that his conduct made passengers fear for their safety.

But Yoran portrayed Neely as someone in the grip of mental illness and addiction, who needed help, and wasn’t a robber of the type that Kenniff had described in his invocations of earlier case law.

“Most people talked about ‘I’m hungry, I’m thirsty,’ and it was an expression of his frustration. We’re talking about a man who is having a psychotic attack, who is on K-2, who is unhinged,” she said.

“No reasonable person would think that the solution was to give him what he wants. If they gave him water, if they gave him food, if they gave him $100, nothing was going to stop” the menacing conduct, she said.

Kenniff then tried to use the prosecutor’s admission against her, saying that the train ride between Second Avenue, where Neely got on, and Broadway-Lafayette, the next station, was about 30 seconds at most.

“The notion that there was an opportunity here for de-escalation—‘Here, let me give you $5,’ or whatever it is—is just not a reality. The fact that [he] is mentally unstable does not make him incapable of a robbery,” he said.

It was incumbent on the court to view the evidence in the light most favorable to the defense, Kenniff argued.

The judge appeared largely unmoved by the legal arguments and case law he invoked.

“I’m skeptical about giving a discharge,” the judge said.

“I anticipated you asking for it, but I’m still skeptical that it’s there.”

The judge made a small concession to the defense, agreeing to include the limiting instruction to the jury excluding witnesses’ opinions from consideration.

Closing statements in the trial are scheduled to begin on Dec. 2.