Manslaughter charge against Daniel Penny dismissed

NEW YORK – The judge in Daniel Penny’s trial for the death of Jordan Neely dismissed the second-degree manslaughter charge against him Friday after the jury twice said they were unable to reach a unanimous decision. 
The dismissal of the charge clears the way for the jury to decide on the lesser charge of criminally negligent homicide, which carries up to four years in prison. Penny could have faced up to 15 years in prison if convicted of manslaughter, which is no longer on the table. 
Friday morning, the jury informed the judge they were unable to reach unanimity on the manslaughter charge, but the judge ordered them to keep deliberating. At around 3 p.m., the jury came back with a second note, saying they were still unable to agree. 
The defense moved for a mistrial, but the judge granted the prosecution’s request to dismiss the charge, clearing the way for the jury to decide on criminally negligent homicide. 
The jury was sent home for the day and will return on Monday. 
Penny, 26, is charged in the chokehold death of Neely aboard a subway last year. The Marine veteran pleaded not guilty to manslaughter and criminally negligent homicide charges. 
The judge instructed the jury at the beginning of deliberations that they must agree on the manslaughter charge before they can even consider the second charge of criminally negligent homicide. The jury has been told all along that if they were to find Penny guilty of second-degree manslaughter, they would not have to issue a decision on the lesser count. 
The jury started deliberating on Tuesday and has sent several notes since. 
Jurors requested to watch cell phone and police bodycam footage of the incident, as well as Penny’s interview at the police station. They also wanted to hear readback of the defense’s cross examination of New York City Medical Examiner Dr. Cynthia Harris, who performed Neely’s autopsy, and ruled his cause of death compression of the neck. 
Jurors also asked for part of the judge’s instructions, as well as the legal definitions of “recklessness” and “negligence,” to be re-read to them. They also have asked the judge for clarification on the term “reasonable person.” 
Prosecutors have argued that while Penny’s intentions were good in restraining Neely, he had him in a chokehold for too long. Penny’s defense has argued he wasn’t using pressure during the hold, just holding Neely down. A defense witness also disagreed with the Medical Examiner’s cause of death determination, arguing Neely died due to a combination of factors including drugs and sickle cell crisis.