NEW YORK >> The Manhattan judge overseeing the case of a man accused in the choking death of a mentally ill subway passenger last year dismissed the most serious charge against him this afternoon, leaving jurors to consider a lesser charge when they return to court next week.

The jurors today deadlocked over whether the man, Daniel Penny, was guilty of manslaughter, leaving unresolved a case that has come to exemplify New York’s post-pandemic struggles. They will now consider whether he should be convicted of criminally negligent homicide, a charge that carries a lesser prison sentence.

After nearly three days of deliberations, the jurors sent two notes — one this morning and a second that afternoon — to the judge, Maxwell T. Wiley, saying that they could not come to a unanimous decision about whether Penny was guilty of manslaughter in the second degree.

After the jurors sent the first note, Wiley responded by reading them a so-called Allen charge, official instructions for the jurors to resume their deliberations, with the goal of reaching an agreement through the reconsideration of differing opinions.

“It’s not uncommon for juries to believe they will never be able to reach a unanimous decision,” he said, adding: “I’ll ask you to continue deliberations on that count.”

Following Wiley’s instructions, the panel of seven women and five men returned to their sequestered room to discuss further. However, after about three hours, they sent another note, saying: “After further deliberations, we cannot come to a unanimous decision on count one, manslaughter in the second degree.”

Penny’s lawyers argued that the deadlock meant that the trial should be ruled a mistrial, while prosecutors with the Manhattan district attorney’s office asked that the manslaughter charge be dismissed so that the jury could deliberate on the lesser charge.

Had the jury convicted Penny of second-degree manslaughter, he would have faced up to 15 years in prison. By contrast, according to New York law, criminally negligent homicide carries a maximum of four years in prison. Neither charge comes with a minimum sentence.

Wiley granted the prosecution’s motion this afternoon to dismiss the manslaughter charge against the defense’s objections.

The jurors will now move on to deliberating the lesser charge Monday, the judge said.

Prosecutors said Penny fatally choked the subway passenger, Jordan Neely, a 30-year-old former Michael Jackson impersonator who struggled with his mental health, when he held Neely in a chokehold for about six minutes on the floor of an F train on May 1, 2023.

Neely had boarded the train that day and begun yelling at passengers, according to witnesses. As he strode through the subway car, he shouted about being hungry, saying that he wanted to return to jail and that he did not care if he lived or died, they said. Penny then approached Neely from behind and put him in a chokehold, taking him to the floor.

Prosecutors said that Penny’s actions were not accidental and that he had failed to recognize Neely’s humanity, squeezing his neck ever tighter as he struggled to break free. They argued that Penny’s chokehold had killed Neely, pointing to the testimony of a New York City medical examiner, who ruled that Neely’s death was caused by “compression of the neck.”

Penny’s lawyers argued that their client’s actions had not been the direct cause of Neely’s death, instead suggesting that it was a toxic combination of Neely’s synthetic marijuana use, sickle cell trait and mental illness that had killed him.

In instructions the jurors were given before they began deliberations, they were told that they had to first consider the charge of manslaughter and come to an agreement. If they believed that Penny, a 26-year-old former Marine, was guilty, they would not need to consider the lesser charge.

It was unclear, however, if jurors would be able to consider the second charge if they failed to reach an agreement on the first, and they had asked for instructions today about what to do.

Upon receiving the jury’s first note today, Penny’s lawyer, Thomas A. Kenniff, argued that it would be “coercive” to ask the jurors to continue to deliberate.

“The defense position at this time is we are moving for mistrial,” Kenniff said. “The jury has been deliberating for roughly 20 hours, over four days, on what is in many ways a factually uncomplicated case.”

When the jurors came back and said they still could not come to an agreement, Kenniff doubled down.

Dafna Yoran, an assistant district attorney, pushed back, calling it “crazy” to have a hung jury simply because jurors were unable to consider a second count.

It is unclear how many jurors voted against the manslaughter charge.

After receiving the second notice, Wiley said that, based on the notes he had received, it seemed possible that the jury could not agree on whether Penny’s actions were justified because he had acted in reasonable self-defense or in the defense of others.

Anna Cominsky, director of the Criminal Defense Clinic at New York Law School, said it was “pretty rare” for prosecutors to ask for a top charge to be dismissed while a jury was deliberating.

Cominsky said the development could bode well for the district attorney’s office since jurors will now be asked to consider a charge that is “easier.”

On the other hand, if Penny is convicted on the second count and his lawyers appeal, they will likely mention the dismissal of the top charge in their filings, she said.

The jurors have sent more than 10 notes to Wiley over the course of the deliberations asking for readings of the relevant law, to see video and to have testimony read to them.

On Wednesday, for example, jurors asked to hear earlier testimony from Dr. Cynthia Harris, a medical examiner, in which they remembered her saying, “I don’t need all the facts.” She never actually said that, according to court transcripts, but the jurors’ question provided a small window into the elements of the case they were focusing on and had possibly come to an impasse over.

Soon after the jurors were sent back to continue deliberating Friday, they sent Wiley another note, this one asking for “further clarification in the determination of whether a person reasonably believes physical force to be necessary.”

After the judge issued his ruling Friday and dismissed the parties for the day, Neely’s father, Andre Zachery, stomped his foot on the floor twice as Penny left with his defense team.

Neely’s maternal uncle, Christopher Neely, turned to those seated next to him and shook his head.

This article originally appeared in The New York Times.

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