A jury was seated Wednesday in former Marine Daniel Penny’s subway chokehold trial — with the majority of jurors saying they’ve had first-hand experience with someone acting erratically on the rails.
The seven women and five men are now tasked with deciding whether to convict Penny, 25, of killing Jordan Neely, a homeless man who some witnesses said was “insanely threatening,” on a crowded subway train in May 2023.
He faces up to 15 years in prison.
They include three straphangers who say they’ve been harassed on the transit system — and nine New Yorkers who raised their hands when a judge asked them if they’ve seen someone have an “outburst” on the subway.
One woman, who lives in Greenwich Village and was chosen Wednesday, said a man once yelled and swore at her and her friend on a subway car.
Also selected were an Upper West Side paralegal whose father served in the Israeli military and who rides the subway five days a week, a Murray Hill corporate lawyer, and an Upper West Side retiree who moved to the city from Nebraska.
The 12 panelists, plus four alternates, were chosen after a two-week process that ended with some fiery moments in court Wednesday in the already highly charged case — such as when a Manhattan prosecutor accused Penny’s lawyers of illegally aiming to oust prospective jurors of color from the case.
Assistant District Attorney Dafna Yoran ripped Penny’s lawyers, Steven Raiser and Thomas Kenniff, for using eight of their nine no-questions-asked juror challenges on “people of color.”
Kenniff shot back that the suggestion that their juror strikes were racially motivated was “outrageous” and pointed out that one of the jurors selected for the case is a “male black juror.”
Justice Maxwell Wiley ultimately allowed the strikes to stand after asking Kenniff to provide other rationales for why the jurors were stricken from the case.
Yoran brought up the issue again, also unsuccessfully, after Kenniff and Raiser used another strike on a prospective juror of color Wednesday afternoon.
“If you look at the entirety of their behavior, race is playing a huge part of it,” she argued.
At least four people of color are on the jury.
Raiser and Kenniff have worked throughout the jury selection process with celebrity jury consultant Jo-Ellan Dimitrius, who has helped high-profile clients like Kyle Rittenhouse pick juries in recent years, and worked with OJ Simpson on his murder trial.
The DA’s office did not have its own jury consultant, and instead was relying on research from its paralegals before making its jury selection decisions, Yoran said.
The issue of race has hung over the case from the start.
Penny, who is white, is accused of placing homeless 30-year-old subway busker Neely, who was black, in a six-minute chokehold on a crowded F train on May 1, 2023.
Neely, who was unarmed, was verbally threatening passengers inside the northbound train as it approached the Broadway-Lafayette station.
Prosecutors say Penny acted recklessly and ignored an “unjustifiable risk” by continuing to choke Neely even after the subway doors opened onto the platform — allowing some frightened passengers to flee — and for a minute after he lost consciousness.
Penny’s lawyers have argued that his actions were justified to protect himself and other straphangers, and have cited Neely’s chronic abuse of the drug K2, which they say made him prone to violent outbursts.
Penny insisted in an interview with The Post after his arrest that the chokehold killing “had nothing to do with race.”
“I judge a person based on their character,” he said in the May 2023 interview.
“I’m not a white supremacist.”
“Everybody who’s ever met me can tell you, I love all people, I love all cultures,” he added.
“You can tell by my past and all my travels and adventures around the world. I was actually planning a road trip through Africa before this happened.”
Opening statements in the case are set for Friday morning.
