Former Marine held NYC subway performer in chokehold even after man ‘ceased all purposeful movement,’ court filing says

(CNN) — Former US Marine Daniel Penny put Jordan Neely in a lethal six-minute chokehold that continued for nearly a minute after the homeless subway performer had “ceased all purposeful movement,” according a court filing by Manhattan prosecutors on Wednesday.

“The evidence before the grand jury establishes that Jordan Neely transitioned from life to the throes of death during the precise moments that he was being held in a chokehold by the defendant,” prosecutors said in a motion.

The filing, in which the prosecution provides a timeline of the 30-year-old man’s death, came in response to a motion from Penny’s attorneys seeking the dismissal of the case, citing witness testimony stating that Neely had been lunging at subway riders at the time, according to previous CNN reporting.

Assistant District Attorney Joshua Steinglass argued in the filing that witness accounts differed “sharply,” and undermined defense attempts to establish the notion of “rampant and universal panic” on the subway that day.

While a few witnesses stated they were fearful of Neely, the filing asserts others felt differently, including one person who described the moment as being “like another day typically in New York. That’s what I’m used to seeing.“ No witnesses said Neely had physical contact with anyone before Penny came up behind him, according to the prosecution filing.

“Many witnesses relayed that Mr. Neely expressed that he was homeless, hungry, and thirsty. Most recount that Mr. Neely indicated a willingness to go to jail or prison,” Steinglass wrote in the filing.

The filing describes a 4-minute 57-second-long video taken by a witness – which starts with Penny already choking Neely, according to prosecutors. Within three minutes, as seen in the video, Neely stops all “purposeful” movement, the filing states. Two passengers are seen in the video also holding Neely down, according to the filing.

“After that, Mr. Neely’s movements are best described as ‘twitching and the kind of agonal movement that you see around death,’” the prosecutor wrote.

Steinglass added, “The hold seemed so unnecessary at that point that an eyewitness can be heard on video urging the defendant to let go of Mr. Neely and warning the defendant that ‘if you don’t let him go now, you’re going to kill him.’”

Penny pleaded not guilty to charges of second-degree manslaughter and criminally negligent homicide, CNN has previously reported.

Penny’s defense has argued that the former marine had no intention to kill Neely, but the prosecution’s filing noted that second degree manslaughter only requires the state to prove Penny acted recklessly, not intentionally.

Asked for comment, Penny’s defense attorney Thomas Kenniff said his client’s “restraint” of Neely was not a chokehold and did not involve continued pressure to the neck.

“The prosecution also omits mention of the numerous eyewitnesses who described how Neely violently resisted the attempt to restrain him,” Kenniff told CNN in a statement on Thursday.

Penny told police that Neely was acting “irate,” prompting him to use the chokehold to subdue him, according to previous CNN reporting.

The incident involving Neely, a Black man, and Penny, who is White, was partially caught on video and sparked demonstrations across New York City.

“The notion that death is not a foreseeable consequence of squeezing someone’s neck for six minutes is beyond the pale,” the prosecution’s filing said.

Penny’s next court appearance is on December 6, according to court records.

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