An NYPD detective testified in court Thursday that the New York veteran accused of manslaughter in connection with the death of an erratic man who barged onto a subway car and threatened passengers had not been told the man had died when he waived his Miranda rights and agreed to speak with detectives.
Lawyers for Daniel Penny, a 25-year-old Marine Corps veteran, told Fox News Digital there is "overwhelming evidence that Danny was justified in the actions he took to protect the commuters on that train." They are questioning whether police had probable cause to detain him and whether statements prosecutors plan to use against him at trial were properly obtained.
Penny was charged after he appeared on cellphone video placing Jordan Neely, 30, in a chokehold as other passengers helped restrain him in May 2023.
The defense called NYPD investigators to the stand Thursday to grill them about whether there was probable cause to arrest their client to begin with.
KEY WITNESSES IN DANIEL PENNY, JORDAN NEELY CASE REFUSE TO COOPERATE WITH DA BRAGG'S OFFICE: REPORT
Penny had not been told that Neely was dead during his questioning, NYPD Detective Michael Medina testified. He and a colleague let Penny go after interviewing other witnesses. They initially dubbed him a "good Samaritan."
Medina, a 23-year member of the NYPD, was the first of five officers involved in the investigation to testify Thursday.
Penny was treated as a witness during the interview and was not placed in handcuffs, he said. Their conversation was recorded on video. Penny waived his Miranda rights. There was another detective, whose last name is McCarthy, in the room with them.
Prosecutors played video from the interview in court Thursday.
It shows Penny calmly cooperating with the detectives, explaining that he's a Marine veteran and studying to be an architect. He said he was on his way to the gym after class at the time of the altercation.
US MARINE VET DANIEL PENNY PLEADS NOT GUILTY TO MANSLAUGHTER IN CHOKEHOLD DEATH OF JORDAN NEELY
According to testimony at the Thursday hearing, Neely barged onto the train after the 10th Street station, ripped his jacket off and threatened to "kill anybody," he said.
"He was acting like a lunatic, like a crazy person," Penny told detectives. He said after Neely tossed his jacket, he shouted something along the lines of, "If I don’t get this, this and this, I’ll go to jail forever."
There were women and children on the train, and Penny perceived a threat. When Neely walked into him, he said, he put him in a chokehold.
"I'm not trying to kill the guy," he told detectives. "I'm just trying to deescalate the situation."
He said that two other men on the train helped him hold Neely down as they waited for police to arrive.
"People do this all the time, but this guy, he was actually a threat," he told the officers. Medina and McCarthy told him he would be detained for the time being, and he asked for a lawyer.
A public safety officer testified that when he arrived at the train, he saw Neely unconscious on the ground and asked what happened. The witnesses pointed to Penny, he said, identifying the defendant in the courtroom.
He said witnesses told him that Neely boarded the train, began making threats, and Penny "took him out." Bodycam video showed Penny remained at the scene and cooperated with responding officers.
Neely was unconscious when police arrived but had a pulse, the public safety officer testified. However, responding officers later tried giving him CPR and administered Narcan, a heroin antidote used to revive people during overdoses.
The next witness was Officer Dennis Kang, a 5-year veteran who also responded to the train car and met Penny at the scene. He said witnesses described Neely as "erratic" and said Penny was "stopping" him. Other people on the train appeared to be supportive of Penny, he said.
The judge said he would not be releasing video played in court Thursday to the media because the trial has not yet begun.
Penny's lawyers are arguing that police had no cause to arrest him, and they are questioning whether any statements they intend to use against him were improperly obtained.
"The Government must demonstrate that any statements they intend to use at trial were not obtained through coercion or threats," one of his attorneys, Steve Raiser, told Fox News Digital earlier. "In addition, they will need to prove that probable cause existed to believe that a crime was committed. Our position will be that despite the low level of evidence necessary to demonstrate probable cause, the police did not have sufficient evidence. This is especially true considering the overwhelming evidence that Danny was justified in the actions he took to protect the commuters on that train."
Witnesses said the homeless Neely was threatening subway riders and behaving aggressively. He had a history of mental illness and violence, including the 2021 assault of a 67-year-old woman.
Police questioned and released Penny on the day of the incident, but 11 days later, Manhattan District Attorney Alvin Bragg's office announced an indictment on charges of manslaughter and criminally negligent homicide. He has pleaded not guilty.
Critics of Bragg's decision to prosecute Penny have called the move political and believe that the veteran acted in self-defense and to protect other passengers.
"If [Neely] had carried out his threats, he would have killed somebody," Penny told Fox News Digital in June 2023.
Another witness expressed similar concerns.
"I don’t care if I have to kill an F, I will," Neely had allegedly ranted. "I’ll go to jail, I’ll take a bullet."
Prosecutors said last year that they had obtained at least five eyewitness videos of the encounter and surveillance video they planned to introduce as evidence.
Penny faces up to 19 years in prison if convicted. His trial was slated to begin before the end of the month.
Fox News' Maria Paronich contributed to this report.
