The judge in the trial of Daniel Penny, the man accused of using a fatal chokehold on Jordan Neely on a New York subway last year, dismissed a manslaughter charge in the case on Friday, according to what jurors said , they were stuck.

The decision, made at the request of prosecutors, means the jury will only consider the lesser charge of involuntary manslaughter. The maximum penalty is up to four years. The jury was not told that prosecutors had made the request. Penny has pleaded not guilty.

The jury – seven women and five men – will resume deliberations on Monday. They sent messages to the judge twice on Friday — one in the morning and one in the afternoon — They said they could not reach a unanimous decision on the main charge of second-degree manslaughter. After the initial communication, Judge Maxwell Wiley ordered deliberations to continue.

Before deliberations began Tuesday afternoon, Wiley told jurors that there had to be a unanimous decision on the manslaughter charge before involuntary manslaughter could be considered. They were also ordered to decide whether Penny’s actions caused Neely’s death and, if so, whether he acted recklessly and unjustifiably.

Penny, a former marine and architecture student, had just returned from class and was on his way to the gym on the afternoon of May 1, 2023, when he encountered the unpredictable Neely on a subway.

Neely, a former Michael Jackson impersonator, threw his jacket on the floor and loudly complained about being hungry and thirsty and not caring whether he died or went back to prison as he boarded the train , as witnesses testified. Penny put him in a chokehold that lasted six minutes, according to prosecutors. It continued after the uptown F train arrived at its next stop, Broadway-Lafayette station, bystander video showed. Neely, 30, was homeless and had a history of mental illness. At the time of his death, he had synthetic marijuana – known as K2 – in his system.

The case became a flashpoint in the long-running debates about racial justice and safety in the city’s subway system, as well as the city’s failure to combat homelessness and mental illness, which Neely had struggled with.

Penny, 26, and his lawyers have said he acted to protect other passengers and that he had no intention of harming Neely, just holding him until police arrived.

A city medical examiner determined that Neely died from compression of his neck resulting from the chokehold, a finding that Penny’s attorneys Thomas Kenniff and Steven Rasen have disputed.

Outside the presence of the jury, Kenniff asked the judge more than once on Friday to declare the trial invalid because the jury could not agree on the involuntary manslaughter charge. He also appealed the dismissal of the charges.

“That basically means forcing the jury, or at least coming to a compromised verdict,” Kenniff said.

Before the more serious charge was dismissed, prosecutors and defense attorneys had argued over whether the jury should be forced to continue deliberations.

“The jury deliberated for approximately 20 hours over four days on what was in many respects a factually straightforward case because it involved an event that unfolded over minutes on video,” Kenniff told the judge. “We are concerned that bringing the Allen charges under these circumstances will be a coercive measure.”

An Allen indictment instructs a deadlocked jury to continue trying to reach a unanimous verdict.

Dafna Yoran, an assistant prosecutor in the Manhattan district attorney’s office, disagreed. She said the note was the first indication of a disagreement within the jury that morning.

The jury has sent about 10 notes to the judge since deliberations began. They asked to rewatch bystander videos of Penny holding Neely, the body camera videos of the responding officers and the video of Penny’s subsequent interview with two police officers at a station. They also asked to repeat some of the coroner’s statements and to ask the judge to read the definitions of recklessness and criminal negligence again and to provide the definitions in writing.

“The tenor of the notes is that this was an extremely conscientious jury that was very systematic,” Wiley said after the defense team’s initial motion for a mistrial on Friday. “So I think it’s right that this is not the time to declare a mistrial. But on the other hand, it is not time to assume that they only sent this message because things have become difficult for them.”

Later, before dismissing the involuntary manslaughter charge, Wiley told jurors he did not want them to violate their conscience or abandon their best judgment.

“I will again call on each of you to make every effort possible to reach a fair verdict here,” he said.

After pointing out in their first note that they were deadlocked, Wiley praised the jurors for their work so far and told them that it was not unusual for jurors to initially have difficulty reaching a unanimous verdict.

“You’ve been at this for a little over two and a half days,” he told jurors before instructing them to continue deliberations. “That’s a long time. But given the factual complexity of the case, I don’t think it’s too long.”