A new NYC Subway-Chokehold Death video surfaces — but with a catch

The couple had been visiting New York City – from “Europe, somewhere”, as the judge described it on Monday – when they filmed Penny struggling on the dirty car floor with victim Jordan Neely.

The tragedy rocked a post-pandemic city struggling, with mixed success, to reduce crime and get tourists and commuters back to its streets, restaurants, theaters and offices.

Penny’s lawyers now believe the footage of the husband and wife could be among their best evidence in the divisive case, potentially shedding more light on Neely’s actions in the minutes before his death and bolstering their defense that the killing was justified.

However, the couple refused to hand over the footage to prosecutors. They also refused to testify before the grand jury that indicted Penny or the trial jury that is set to be selected starting October 21.

Since the recording of the video on May 1, 2023, the husband and wife “have returned to their home, which appears to be in Europe somewhere,” New York Supreme Court Justice Maxwell Wiley said Monday, according to a transcript of an unannounced preliminary hearing. .

“So far they have refused to share the video they made,” the judge continued. “They refused to share it with the prosecutor or anyone else, and so far they refuse to come back and testify.”

So far, the judge noted, the pair has agreed to meet with the prosecutor’s office only a few times, via video. The judge called those meetings “ongoing.”

Prosecutors turned over notes from those meetings to defense attorneys, who expressed an eagerness Monday to learn the identities of the husband and wife and the contents of the video.

“Not only is it probative, I mean it’s incredibly favorable to the defense, or at least certain parts of it,” defense attorney Thomas Kenniff said of the notes from those meetings, speaking to the judge Monday.

“Perhaps more probative than any testimony of the issues that will be at issue in this trial.”

The defense noted that because the husband and wife live outside the United States, their testimony and video may be impervious to subpoenas from either side.

Still, Kenniff suggested that based on the prosecutor’s notes, the couple’s footage and testimony is so good for the defense that prosecutors are making less than a good-faith effort to secure it.

“If we’re at the same point in a few weeks, then this is, I think, a very serious issue,” Kenniff said, warning that his client’s right to present a defense is being compromised.

Prosecutors have at least two other eyewitness videos, according to court records, but both begin after Penny began choking Neely.

The next hearing of the case is set for October 3.

Penny, of Long Island, remains free on $100,000 bail. and his online defense fund raised $3 million.

He has pleaded not guilty to an indictment that alleges he was reckless or at least negligent when he used excessive force on Neely, continuing to choke him for nearly a minute after the prone man stopped moving.

Neely was a homeless street performer and Michael Jackson impersonator. He had schizophrenia, multiple arrests for assault and a history of using K2, a powerful synthetic marijuana, according to court documents filed by both the prosecution and defense.

Prosecutors noted that according to several eyewitnesses, Neely was verbally threatening the passengers at the time Penny jumped him. In a court filing Monday, prosecutors acknowledged there was a “synthetic cannabinoid present in his blood at autopsy.”

Still, “the defense should not be allowed to introduce damaging background information about the victim’s character and history,” lead prosecutor Dafna Yoran wrote in the filing.

“The only reason for doing this is to influence the jury to devalue Mr. Neely’s life,” Yoran wrote.

Kenniff and a spokesman for the DA’s office declined to comment for this story.