Daniel Penny Trial: Opening statements set for Friday in New York City subway chokehold trial in death of Jordan Neely

NEW YORK (WABC) — Opening statements begin Friday for Daniel Penney, the Marine veteran charged in the May 2023 subway chokehold death of Jordan Neely.

Jurors at the trial will see evidence showing Neely was unarmed, the judge said in a written opinion released Thursday.

The defense sought to exclude evidence or testimony about the absence of a weapon found during the search of Neely’s body, but Judge Maxwell Wiley said such evidence and testimony was relevant to the case.

“The fact that Mr. Neely was unarmed provides additional information that may help the jury, namely, clarify what someone in the defendant’s position might have perceived,” Wiley said. “The possibility that a person in the defendant’s situation could have reasonable grounds to mistakenly believe that Mr. Neely was armed is relevant for the jury to consider and is well within their ability.”

The defense is concerned that including evidence that Neely was unarmed could increase sympathy for the victim, but the judge said it will help the jury decide whether Penny’s actions were justified.

“The defendant’s perception of the deceased, Mr Neely, is central to this analysis and therefore the question of whether he was armed or could reasonably be considered to have been armed is relevant to the fact in question, namely that Mr. n Neely made a threat to use physical force or deadly physical force before the defendant took action,” the opinion states.

A jury of seven women and five men was seated on Wednesday.

Penny has pleaded not guilty to charges of second-degree manslaughter and criminally negligent homicide in Neely’s death.

The trial is expected to last four to six weeks, Judge Max Wylie said.

ABC News contributed to this report.

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