NY judge to consider Marine vet Daniel Penny’s motion to dismiss case in Jordan Neely subway chokehold death

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Daniel Penny is expected to return to a New York City courtroom on Wednesday, when a judge will decide whether to dismiss the case involving Jordan Neely’s subway death last May. 

A U.S. Marine veteran, Penny, 24, has pleaded not guilty to second-degree manslaughter and criminally negligent homicide in the May 1, 2023, death of Neely, a homeless man and former Michael Jackson impersonator who witnesses reported was shouting and begging for money on the F subway train in Manhattan. 

Penny pinned Neely to the ground with the help of two other passengers and held him in a chokehold for several minutes, according to prosecutors. Neely, 30, lost consciousness during the struggle. Penny’s defense has argued in court filings that Neely’s erratic behavior was “insanely threatening,” and Penny stepped in to defend himself and other passengers. 

Video that captured Penny, who is White, holding Neely, who was Black, in a chokehold on the subway went viral, sparking racial justice protests. 

US MARINE VET DANIEL PENNY PLEADS NOT GUILTY TO MANSLAUGHTER IN CHOKEHOLD DEATH OF JORDAN NEELY

Screenshot from bystander video showing Jordan Neely being held in a chokehold on the New York City subway. (Luces de Nueva York/Juan Alberto Vazquez via Storyful)

A judge is expected to rule Wednesday on Penny’s attorneys’ motion to dismiss the case. In addition to asking for the indictment to be dismissed, the defense is requesting to suppress Penny’s statements to law enforcement, invalidate search warrants and suppress any evidence obtained.

Penny turned himself in 11 days after the incident upon the Manhattan District Attorney’s Office decision to charge him. 

Daniel Penny leaves the courtroom after an arraignment hearing at NYS Supreme Court on June 28, 2023 in New York City. (Michael M. Santiago/Getty Images)

He was released that same day on $100,000 cash bail and ordered to turn over his passport.

Notably, celebrity civil rights activist Rev. Al Sharpton gave a eulogy at Neely’s funeral, blasting the decision not to arrest Penny on the spot. 

DANIEL PENNY: MARINE VET ACCUSED OF FATAL SUBWAY CHOKEHOLD REVEALS WHY HE STEPPED IN

Supporters of Jordan Neely protest a rally in support of Daniel Penny at Collect Pond Park on May 24, 2023 in New York City. (Michael M. Santiago/Getty Images)

Penny, a former infantry squad leader and an instructor in water survival deployed twice from 2017 to 2021, rejected accusations that his actions were racist, telling Fox News Digital in an interview over the summer, “The majority of the people on that train that I was protecting were minorities, so it definitely hurts a lot to be called that.” 

Neely, who struggled with mental illness, had been arrested more than 40 times, including for numerous violent assaults on strangers in the subway, and was on the city’s “Top 50” list of homeless people most in need of outreach, the New York Post previously reported. 

Daniel Penny is escorted from the 5th precinct Manhattan station house on May 12, 2023, in New York. (Barry Williams/New York Daily News/Tribune News Service via Getty Images)

One witness, who described herself as a woman of color, previously told Fox News Digital that Neely boarded the subway train that May 1 afternoon, ranting, “I don’t care if I have to kill an F, I will. I’ll go to jail, I’ll take a bullet.”

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“It was self-defense, and I believe in my heart that he saved a lot of people that day,” the woman said. 

Fox News’ Rebecca Rosenberg contributed to this report.

Danielle Wallace is a reporter for Fox News Digital covering politics, crime, police and more. Story tips can be sent to danielle.wallace@fox.com and on Twitter: @danimwallace.