Jurors are considering lesser charges against Daniel Penny in the death of Jordan Neely

NEW YORK – Manhattan jurors weighing the fate of Marine veteran Daniel Penny will return to court Monday, but only to consider the lesser charge against him after a judge controversially tossed the more serious charge and avoided a trial.

Judge Maxwell Wiley on Friday agreed to the prosecution’s request to dismiss the most serious charge, second-degree manslaughter, after jurors twice told the court they were deadlocked on the issue.

They had previously been instructed to consider the lesser charge of criminally negligent homicide if they found Penny not guilty of manslaughter for any reason other than a lack of justification.

“Murder in the second degree is dismissed,” Wiley told jurors before sending them home Friday. “That means you’re now free to consider counting two. Whether that makes any difference, I have no idea.”

DANIEL PENNY SECOND CASE DISMISSED AS JURY SEEMS FOR WEEKEND

Daniel Penny arrives at Manhattan Criminal Court in New York City, Thursday, Dec. 5, 2024. The jury enters their third day of deliberations in Penny’s trial for the 2023 death of Jordan Neely on a Manhattan F train. (Adam Gray for Fox News Digital)

They returned Monday to consider only the lesser charge, and Wiley issued a clarification to start the day.

“The court concluded that it would be legal to instruct the jury to continue with count two because the DA withdrew count one,” he said. “The court held that, as a matter of law, withdrawal was dismissal.”

However, he said there is no clear “black-letter law” on the issue.

The defense had opposed the last-minute exchange of charges, arguing that it violated state law and could encourage a precedent in which prosecutors convince from the start, knowing they can downgrade charges later down the road if their case does not hold up.

“The risk here of a forced sentence or a compromised sentence … New York is clear that compromised sentences are discouraged,” Penny’s lawyers told the judge. “It would force them to what we would submit would be produced, in terms of the lesser degree of criminal negligence.”

They moved for a trial Monday morning, but Wiley denied the request.

DANIEL PENNY TRIAL: KEY EVIDENCE JURORS ASKED TO SEE AGAIN DURING DELIBERATIONS

Screenshot from bystander video showing Jordan Neely being held in a choke hold on the New York subway. (Luces de Nueva York/Juan Alberto Vazquez via Storyful)

Wiley addressed the jury before sending them back to the conference room.

“I want to make it clear that the court has no role whatsoever in your deliberations,” he told them. …In directing you to proceed to count 2, the court is not directing you toward any sentence.”

He said that by instructing the jury to consider the lesser charge, the court was not calling for a verdict in either direction.

“As with Count 1, you should do whatever is consistent with your conscience and the law as much as possible,” Wiley said. “No juror should give up his honest view of the verdict just because you want to end deliberations.”

Penny, 26, was an architecture student at City Tech in Brooklyn on May 1, 2023, when he took an F train to an after-hours gym and Jordan Neely, a 30-year-old homeless man with schizophrenia and high on drugs, burst onto the train and began shouting threats at the passengers.

Jordan Neely is pictured before going to see the Michael Jackson movie, “This is It,” outside Regal Cinemas on 8th Ave. and 42nd St. in Times Square, New York, in 2009. (Andrew Savulich/New York Daily News/Tribune News Service via Getty Images)

After jurors resumed deliberations Monday, the defense asked to record the loud noise of protesters that could be heard inside the courthouse.

Before the day began, protesters both for and against Penny’s freedom clashed outside. The anti-Penny faction continued to make noise through a megaphone after court began for the day, easily heard through open courthouse windows, the judge acknowledged.

Penny’s attorney Thomas Kenniff said some of the statements, such as “if we get no justice, they get no peace,” could be construed as threats to the jury.

“There were no threats to the jury,” argued Manhattan Assistant District Attorney Dafna Yoran. She also claimed, “There are numerous threats going on from the other side of this lawsuit, constantly.”

It was not immediately clear what she was referring to.

The judge said he would allow the jury to continue deliberations, but he would call both sides back to the bench if there were more interruptions.

Prosecutor Dafna Yoran leaves Daniel Penny’s trial at the Manhattan Supreme Criminal Court building in New York City, Monday, Dec. 2, 2024. Both sides began their closing arguments in Penny’s trial for the 2023 subway death of Jordan Neely. (Julia Bonavita/Fox News Digital)

Legal experts have criticized the judge’s move to allow only the lesser charge to be considered.

“Now the judge is telling the jury, ‘forget about the law, forget about what I told you,'” the Fox News legal analyst told “Fox & Friends” Monday morning. “His ruling also violates New York procedural law, which prohibits dismissal at this late stage in the deliberations unless both sides agree. The defense did not agree.”

DANIEL PENNY LITIGATION: JURORS ASKED TO SEE KEY EVIDENCE AGAIN DURING DECISIONS

Many witnesses testified that they were horrified during the ordeal and relieved when Penny put an end to the outburst by placing Neely in a headlock and wrestling him to the ground, where he and other passengers held him for several minutes.

Penny remained at the scene and spoke with responding officers. He also agreed to speak with NYPD detectives at the 5th Precinct building.

“He was talking gibberish… but these guys push people in front of trains and stuff,” he told investigators. There were more than 20 subway pushes in the year before Penny met Neely.

Just three days earlier, a subway rider had been stabbed with an ice pick on a J train, according to reports from the time. It was about a month after a PBS reporter got pacifier broken on a train no. 4. There was a push a week before that and the victim hit the side of a moving R train and survived.

Jordan Newley’s father, Andre Zachary, arrives in Manhattan Supreme Court on Thursday, Dec. 5, 2024. Zachary’s son, Jordan Neely, died in 2023 after being strangled by Daniel Penny on a NYC subway. (Rashid Umar Abbasi for Fox News Digital)

Jurors spent most of last week deliberating and failed to reach a unanimous decision on the top charge.

“Judge Wiley should have declared a mistrial,” Andrew McCarthy, a former chief assistant U.S. attorney for the Southern District of New York, wrote in a Fox News op-ed Sunday. “To proceed at this point is to try to get the jury to convict. I further believe it would be in violation of the New York Code of Criminal Procedure.”

Penny’s defense fundraiser on GiveSendGo has collected more than $3 million in donations from supporters around the country, and small dollar contributions continued to arrive Monday, on the fifth day of jury deliberations and after Neely’s father announced a civil lawsuit against the Marine vet.

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Penny faces a maximum of four years in prison on the lesser charge.

“We are cautiously optimistic that the remaining count will be rejected by the jury on Monday,” one of Penny’s defense attorneys, Steven Raiser, told Fox News on Friday. “It would finally put this nightmare behind Danny and allow us to focus on the civil lawsuit filed two days ago for the same allegations contained in the criminal indictment.”

Fox News’ CB Cotton contributed to this report.