Jury in Daniel Penny case says it is deadlocked on manslaughter count in subway chokehold trial

NEW YORK — It appears a Manhattan jury cannot reach a unanimous decision on the top charge against Daniel Penny, a Marine veteran charged in the chokehold death of Jordan Neely.

In their first note of the day, the jury in Penny’s manslaughter and negligent homicide trial reported that they are “unable to come to a unanimous vote” on whether Penny committed second degree manslaughter.

“We the jury request instructions from Judge Wiley. At this time, we are unable to come to a unanimous vote on court one,” the note said.

The verdict form asks the jury to decide the first count – second degree manslaughter – before potentially moving to the second count of criminally negligent homicide.

Only if they find Penny not guilty on the first count, can they consider the second count of criminally negligent homicide.

“It would be a crazy result to have a hung jury just because they can’t move on to the second count?” prosecutor Dafna Yoran said.

Judge Maxwell Wiley decided to give the jury an Allen Charge, encouraging them to continue deliberating despite the deadlock.

“Jury deliberations are not intended to be easy,” Judge Wiley said, reading the court’s standard Allen Charge.

Daniel Penny’s lawyer Thomas Kenniff unsuccessfully moved for a mistrial, arguing that the Allen Charge would “coercive.”

Judge Wiley disagreed, saying that it was “too early” to declare a mistrial before encouraging the jury to continue their deliberations.

Yoran also told Judge Maxwell that a new trial would “ultimately (be) the case if they hang the case.”

Judge Wiley left unanswered the question about whether the jury could move onto the second count if they are unable to reach a verdict on the first count. He said he believed the jury moving to the second count is possible but needs to find the legal authority to do so.

“I think ultimately we are going to have to answer the question of whether they can move to count two,” he said.