A man who aided Daniel Penny while he restrained Jordan Neely in a lethal chokehold aboard a subway car in May 2023 recalled telling the former U.S. Marine he could safely release his grip from Neely’s neck in trial testimony on Tuesday.
“I said, ‘I will grab his hands, so you can let go.’ That, I remember,” Eric Gonzalez, 39, a room manager at a casino, testified in Manhattan Supreme Court. “If I held [Neely’s] arm down, [Penny] could let go of his neck.”
Penny did not let go, Gonzalez said. Gonzalez later recalled telling Penny again, “You can let him go. I am holding onto him,” to no avail.
The Bronx man, seen wearing a black cap in widely circulated footage of the incident, said he wasn’t on the uptown F train on which the incident began after Neely boarded at Second Ave.
Gonzalez said he became involved after the subway pulled into the Broadway-Lafayette station, and he saw passengers acting panicked and Penny restraining Neely, whom Gonzalez described as “a vagrant.”
“Everyone was saying call the cops on a specific individual, and I see Mr. Neely being the one being restrained by Mr. Penny,” he said.
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Mariela Lombard for New York Daily News Jordan Neely in 2011. (Mariela Lombard for New York Daily News)
Footage of the encounter captured by journalist Juan Alberto Vasquez shows Gonzalez coming to Penny’s aid while Penny struggled with Neely on the train car floor. The jury watched the video in slow-motion Tuesday as it showed Penny tightening his grip around Neely’s neck.
In the video, a silent Neely, eyes wide, appears to seek help at one point by tapping the leg of a passenger — a German tourist who has refused to cooperate as a witness — before Gonzalez pins down Neely’s arms.
“He wanted to be released,” Gonzalez said.
After a minutes-long struggle, a witness, Larry Goodson, who testified last week, shouts at the two men to let up, warning they could kill Neely.
“At some point, Jordan Neely’s body goes limp, and then I let go — and shortly after, Daniel Penny [let] go,” Gonzalez said He later said he then tried to shake Neely for a response, turned him on his side, felt for a pulse, and walked away, scared “that a person could die.”
Neely was later pronounced dead at Lenox Hill Hospital. Penny’s defense has challenged the city medical examiner’s determination that the cause was homicide by compression of the neck.
Juan Alberto Vazquez
Penny, 26, has pleaded not guilty to second-degree manslaughter and criminally negligent homicide. His attorneys say he acted reasonably to protect terrified passengers when a man who appeared to be mentally unstable started screaming about being hungry and ready to go to jail.
Neely, 30, was unarmed and has not been accused of touching anyone before Penny took him down from behind. His loved ones say he struggled with acute poverty, drug addiction and mental illness and was derailed by his mother’s brutal murder when he was 14 years old. He found joy as a street performer singing Michael Jackson songs in better days.
Prosecutors say Penny’s initial intentions were appropriate, but that the potential threat only lasted for the 30 seconds it took the train to travel between stops. They argue that, once passengers fled to safety, Penny “recklessly” spent 5 minutes and 53 seconds choking Neely.
Gonzalez admitted that he lied to prosecutors when he initially spoke with them, claiming he’d been on the train for the entire incident, that Neely had struck him, and that Penny then “took him down.”
“I was trying to justify my actions for me having my hands on [Neely],” he said.
Gonzalez, who received a non-prosecution agreement, said he also lied about Neely being alive when he left the scene because he was scared of “getting pinned for a murder charge.”
“When you say ‘alive’ — conscious?” Assistant District Attorney Dafna Yoran asked.
“Breathing,” Gonzalez said.
“And was that true?”
“No.”
