Ex-Marine Daniel Penny faces up to 15 years in Jordan Neely subway death — one year for every minute of the chokehold

• Prosecutors say they'll charge Daniel Penny with 2nd-degree manslaughter for Jordan Neely's death.
• Neely died earlier this month after Penny placed him in a fatal chokehold on a NYC subway car.

The former Marine shown on video putting homeless subway rider Jordan Neely in a fatal chokehold last week will be charged with manslaughter, according to Manhattan District Attorney Alvin Bragg.

If convicted, Daniel Penny, 24, would face a minimum of three and a half years in prison, and as much as 15 years, under New York state sentencing guidelines.

Penny, an ex-Marine who confronted Neely on an F train on May 1, will likely surrender to the Manhattan district attorney's office on Friday.

The second-degree manslaughter charge means prosecutors are alleging Penny had a conscious awareness of the risk his actions could cause, including the possibility of Neely's death, said Jeffrey Lichtman, a longtime defense attorney.

Lichtman told Insider that given the press accounts of Neely's behavior, which some accounts described as "threatening," prior to the chokehold, as well as the burden of proof required for a second-degree manslaughter charge, he thinks the case will likely end in an acquittal.

"You put 12 New Yorkers on the jury and if they've ever been on the subway, this will be an acquittal," Lichtman said. "Penny had to hold on to this man until he stopped moving. It's a tragic thing, but New York City is at fault, not the Marine."

In a statement shared with Insider, an attorney for Penny said the Marine veteran confronted Neely to protect himself and his fellow New Yorkers without knowing if his safety was assured.

"He risked his own life and safety, for the good of his fellow passengers," attorney Steven M. Raiser said. "The unfortunate result was the unintended and unforeseen death of Mr. Neely.

Raiser added that he's "confident" Penny will be fully absolved of wrongdoing once the "facts and circumstances surrounding this tragic incident are brought to bear."

Freelance journalist Juan Alberto Vazquez, who recorded the video of the chokehold, said Penny had Neely in a chokehold for "at least 15 minutes."

A lawyer for Neely's family, Lennon Edwards, said he took the case "because 15 minutes is too long to go without help, intervention, and without air," per USA Today.

In a conversation with Insider, however, Lichtman called the second-degree manslaughter charge "foolish," citing the nearly four-minute video that shows Neely struggling against Penny's chokehold as two other passengers appear to try and further restrain Neely.

"The person in the video who is pinning Mr. Neely's arm down while Penny has his arm around Mr. Neely's neck has made public statements. He's said that at no point did they think that Mr. Neely was in danger of dying," Lichtman said.

"He was fighting back," Lichtman added of Neely. "And according to press accounts, he had been threatening people on the subway."

Charges are set to come after nearly two weeks of increasing public pressure and protests throughout the city.

"Bragg's base — the people who voted him in to office were demanding an arrest," Lichtman said. "So, Alvin Bragg, the political animal that he is, jumps right to it and charges."

Eyewitnesses on the subway said Neely, a 30-year-old Black man, was screaming about being hungry and thirsty before Penny, a white man, put him in a chokehold.

To date, no evidence has surfaced that Neely physically assaulted anyone on the train.

New York police told Insider this month that authorities took the unconscious and unresponsive Neely to a hospital, where he was pronounced dead. Penny was questioned by authorities the day of the incident, but was later released.

The medical examiner's office determined that Neely died from "compression of neck" and classified his death as a homicide.

Penny released an earlier statement via his lawyer last week, expressing condolences to Neely's friends and family while directly calling out Neely's "documented history of violent and erratic behavior."

"When Mr. Neely began aggressively threatening Daniel Penny and the other passengers, Daniel, with the help of others, acted to protect themselves, until help arrived," the statement said. "Daniel never intended to harm Mr. Neely and could not have foreseen his untimely death."

May 11, 2023, 8:09 p.m. ET: This story has been updated to reflect a statement from Daniel Penny's attorney.