Ex-Marine Daniel Penny put Jordan Neely in six-minute fatal chokehold on NYC subway - and some witnesses 'undermine the notion of rampant and universal panic', prosecutors say, in new court filing

Manhattan prosecutors on Wednesday defended their decision to bring manslaughter charges against a former Marine accused of choking to death a mentally ill homeless person on the subway, insisting that Daniel Penny knew what he was doing, and dismissing his claim to be protecting other passengers.

Penny, 24, was charged following the May 1 death of Jordan Neely, 30.

Neely, a former Michael Jackson impersonator, had long struggled with mental health issues and was in the midst of a breakdown when Penny crossed paths with him.

Neely was ranting and shouting, and Penny grabbed him from behind, wrestling him to the ground and holding him for six minutes until he passed out.

Neely's family applauded the decision to bring criminal charge against Penny, but Penny on October 10 filed a motion to dismiss the case.

Penny's lawyers argued that Neely posed a threat to other passengers, and Penny acted to protect them.

But prosecutors on Wednesday denied that Neely was menacing, and said Penny would have known his actions could be fatal.

'It is certainly true that several of the passengers testified that they were fearful,' assistant district attorney Joshua Steinglass wrote in the filing.

'Omitted from the defense submission, however, are the accounts that undermine the notion of rampant and universal panic.'

Steinglass added: 'As one witness put it, 'for me, it was like another day typically in New York. That's what I'm used to seeing. I wasn't really looking at it if I was going to be threatened or anything to that nature, but it was a little different because, you know, you don't really hear anybody saying anything like that.''

Prosecutors also accused Penny of holding Neely for significantly longer than was necessary, even if people felt threatened.

They pointed out that the train arrived at the Broadway-Lafayette station and the door opened less than 30 seconds after the chokehold started.

'Passengers who had felt fearful on account of being trapped on the train were now free to exit the train,' Steinglass said.

'The defendant continued holding Mr Neely around the neck.'

Steinglass said second degree manslaughter only requires prosecutors to prove Penny acted recklessly, not intentionally.

'The defendant held Jordan Neely on the ground with his arm wrapped around Mr Neely's neck,' he wrote.

'He did so with enough force and for a long enough period to kill Jordan Neely.

'Not only did the chokehold last some six minutes, but it continued for nearly a minute past the point where Mr Neely ceased all purposeful movement.'

He pointed out that Penny held on to Neely even when other passengers told him to let the man go.

'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,'' said Steinglass.

Steinglass also rejected Penny's argument that Neely's death was 'not foreseeable', highlighting Penny's military training, and 'considerable evidence' that that included chokeholds.

He wrote: 'The notion that death is not a foreseeable consequence of squeezing someone's neck for six minutes is beyond the pale.

'The defendant's own trainer testified that even though 'chokes' are taught as a means of non-lethal restraint, students are specifically cautioned during training that a choke can be fatal to the person being held.'

Steinglass quoted from the forward to the Marine Corps Martial Arts Program manual, which says the '[t]echniques described in this manual can cause serious injury or death.'

He added: 'This training helps support the notion that the defendant was aware of and consciously disregarded a substantial and unjustifiable risk that death would occur as a result of his prolonged use of a chokehold.'

Penny's legal team will now respond to the prosecution's arguments.

The Long Islander remains free on $100,000 bail, and faces up to 19 years behind bars if convicted.