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

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 matter.

They had previously been instructed to deal with the lesser charge of involuntary manslaughter only if they found Penny not guilty of manslaughter for a reason other than lack of justification.

“Second-degree manslaughter is dismissed,” Wiley told jurors before sending them home Friday. “That means you can now think about point two. I don’t know if that makes a difference.”

Involuntary manslaughter charges against Daniel Penny dismissed as jury adjourns for the weekend

Daniel Penny arrives at Manhattan Criminal Court on Thursday, December 5, 2024 in New York City. The jury begins its 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 on Monday to consider only the lower fee, and Wiley issued a clarification earlier in the day.

“The court concluded that since the prosecution withdrew count one, it would be lawful to instruct the jury to proceed with count two,” he said. “The court assumed that the withdrawal constituted a dismissal under the law.”

However, he said there was no clear “black law” on the issue.

The defense had opposed the last-minute charge change, arguing it violated state law and could promote a precedent in which prosecutors overcharge from the start even though they know they will file the charges later in the case They can be demoted in an instant if their case is unsuccessful.

“There is a risk of a compulsory judgment or a compromised judgment here… New York is clear that compromised judgments are discouraged,” Penny’s lawyers told the judge. “It would force them into what we believe would be a fabrication of the lesser offense of criminal negligence.”

They requested a mistrial Monday morning, but Wiley denied the request.

DANIEL PENNY TRIAL: KEY EVIDENCE THAT JURIES REVIEW DURING TRIALS

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

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

“I want to make it clear that the court has no role at all in your deliberations,” he told them. “It is not the court’s job to say what direction your deliberations are taking. It is certainly not the court’s job to influence your deliberations. This is inappropriate.”…By instructing you to proceed with Count 2, the court is not directing you toward a verdict.”

He said that by instructing the jury to consider the lesser charge, the court was in no way urging a verdict.

“Just like point 1, you should make every effort consistent with your conscience and the law as much as possible,” Wiley said. “No juror should give up their honest opinion of the verdict just because they want to end deliberations.”

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

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

After jurors resumed deliberations Monday, the defense asked that the loud noise from protesters heard inside the courthouse be included in the court record.

Before the day began, clashes broke out outside between protesters both for and against Penny’s freedom. The anti-Penny faction continued to make noise on a megaphone after court began and could be clearly heard through open windows in the courthouse, the judge acknowledged.

Penny’s attorney, Thomas Kenniff, said some of the statements, such as “If we don’t get justice, they don’t get peace,” could be construed as threats to the jury.

“There were no threats against the jury,” Manhattan Assistant District Attorney Dafna Yoran claimed. She also claimed: “In this process there are constantly numerous threats from the other side.”

It was not immediately clear what she was referring to.

The judge said he would allow the jury to continue deliberating, but he would recall both sides to the bench if there were further disruptions.

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

Legal experts criticized the judge’s move to consider only the lesser charge.

“Now the judge is telling the jury, ‘Forget the law, forget what I told you,'” the Fox News legal analyst told “Fox & Friends” Monday morning. “His decision also violates New York procedural law, which prohibits dismissal at this late stage in negotiations unless both sides agree. The defense disagreed.”

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Many witnesses testified that during the ordeal they were horrified and relieved when Penny put an end to the outburst by putting 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 investigators at the 5th Precinct building.

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

Just three days earlier, a subway rider was stabbed with an ice pick on a J train Reports from the time. It took about a month for a PBS reporter to arrive Idiot beaten on a No. 4 train. A week earlier, a collision occurred in which the victim crashed into the side of a moving R train and survived.

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

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

“Judge Wiley should have declared a mistrial,” wrote Andrew McCarthy, a former assistant U.S. attorney for the Southern District of New York, in an editorial on Fox News on Sunday. “To proceed at this point is to try to persuade the jury to convict. I also believe this would violate New York criminal procedure law.”

Penny’s defense fundraiser on GiveSendGo has raised more than $3 million in donations from supporters across the country and continues to go up Monday, on the fifth day of jury deliberations and after Neely’s father announced a civil lawsuit against the Navy vet small donations in dollars.

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

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

Fox News’ CB Cotton contributed to this report.