The judge in Daniel Penny’s subway chokehold death trial agreed on Friday to dismiss the manslaughter charge against him, leaving jurors only to consider the lesser count of criminally negligent homicide.

Judge Maxwell Wiley’s decision stemmed from prosecutors’ request to dismiss Penny’s second-degree manslaughter charge after jurors deadlocked twice on that count. Jurors were not able to consider the criminally negligent homicide count until reaching a verdict on second-degree manslaughter.

By agreeing to dismiss this top charge, jurors will be able to continue deliberating the case. Wiley has instructed them to return to court on Monday, according to CNN.

“Judge Wiley is letting the DA withdraw the manslaughter charge. He’ll let the jury consider just criminally negligent homicide now. That’s big for precedent. That also means Penny is now off the hook for manslaughter, though,” Courthouse News reporter Erik Uebelacker said on X.

Penny had been tried on second-degree manslaughter and criminally negligent homicide in the death of Jordan Neely, whom Penny held in a chokehold for about six minutes on a New York City subway car in 2023.

The panelists sent Wiley a note on Friday morning stating they were unable to agree on a verdict on the manslaughter charge.

Wiley then read them what is known as an Allen charge – an instruction urging them to make every possible effort to reach a verdict.

As he pressed the jurors to continue, Wiley commended them for being “very conscientious in your deliberations”, noting that it was not uncommon to have difficulties in reaching a verdict.

But he warned that if they cannot, a new trial will have to be scheduled with a different jury and there was no reason to think any other jury would be more fair or hard-working than them.

He said two and a half days of deliberations may seem like a long time, but “given the factual complexity of the case, I don’t think it’s too long”.

They reportedly sent another note to Wiley on Friday afternoon saying once again that they could not reach a unanimous verdict on the manslaughter count. Manhattan prosecutors then successfully requested a dismissal of that count in particular.

Criminally negligent homicide involves engaging in serious “blameworthy conduct” while not perceiving such a risk. Manslaughter, meanwhile, requires proving that a defendant recklessly caused another person’s death.

Penny’s lawyers say he was protecting himself and other subway riders from a volatile, mentally ill man who was making alarming remarks and gestures. Prosecutors say Penny reacted far too forcefully to someone he perceived as a peril, not a person.

Neely, a 30-year-old street artist and Michael Jackson impersonator, entered a New York City subway car in May 2023. Witnesses say he began yelling at passengers that he was hungry and thirsty and that he did not care whether he died.

Penny then grabbed Neely from behind and restrained him on the train floor in a chokehold that reportedly lasted for several minutes. Neely lost consciousness during the struggle and later died in the hospital. The incident was captured on video by other subway riders.

Penny later told police that he “just wanted to keep him from getting to people”, and described Neely as “a crackhead” who was “acting like a lunatic”.

Prosecutors argued in court that Penny’s actions were reckless and that he consciously disregarded the substantial risk of putting Neely in the chokehold for such a long period of time. They argued that Penny’s use of lethal force should be considered unjustifiable.

Defense attorneys countered by telling the jury that Penny’s actions were only motivated by a desire to protect the subway passengers. They added that Penny never intended to kill Neely, while prosecutors said that an intention to kill was not necessary for a conviction in this case.

The Associated Press contributed reporting