NEW YORK – The judge overseeing the trial of a man accused of attacking an unruly New York City subway passenger with a fatal chokehold dismissed the main charge in the case Friday at prosecutors’ request, allowing the jury to go to trial , to consider a lesser charge after they were unsure whether Daniel Penny was guilty of manslaughter.

Judge Maxwell Wiley’s decision allows the jury to consider a charge of involuntary manslaughter, which carries a more lenient sentence.

“Whether that makes a difference or not, I have no idea. But I will instruct you to concentrate your considerations on point two,” he said, before instructing them to “go home and think about something else.”

The judge’s decision came hours after Manhattan jurors sent him a message saying they could not agree on a manslaughter verdict. Previously, jurors were instructed to reach a verdict on the highest charge before they could consider the lesser charge.

Jurors have been deliberating since Tuesday whether to convict Penny in the death of Jordan Neely. Penny, a former U.S. Marine, held Neely in a chokehold for about six minutes on a New York City subway in May 2023 after Neely got into the car and shouted at people asking for money.

In the case of negligent homicide, it must be proven that the defendant negligently caused the death of another person. The penalty is up to 15 years. Involuntary manslaughter is serious “criminal conduct” without one being aware of such a danger and can be punished with a suspended sentence or a prison sentence of up to four years.

Penny’s lawyers protested the dismissal, saying it would encourage district attorneys to pursue more serious charges in grand juries, knowing they could ask the court to dismiss those charges. Defense attorney Thomas Kenniff called it a “significant political concern.”

Shortly before lunch on Friday, the jury also asked for clarification on how it determines whether a person reasonably believes that physical force is necessary.

“We would like to better understand the term ‘reasonable person,'” her note read in part.

Wiley told the jury that it would be up to them to decide what a reasonable person would do in the situation – whether someone would reasonably have believed Neely would use physical force against Penny or someone else.

Since deliberations began, the jury made several additional requests to the judge.

They asked to see the video of police and bystanders at the center of the trial. They demanded that the testimony of a city coroner be read. They also asked the judge to reread the criminal definitions of recklessness and negligence in open court and to obtain written copies of the statute.

Neely, 30, was a former Subway performer with a tragic life story: When he was a teenager, his mother was killed and stuffed in a suitcase. His adult life was marked by homelessness, psychiatric hospitalizations, drug abuse and criminal convictions, including assaults in subway stations.

Penny, 26, then studied architecture. He is white. Neely was black.

Penny’s lawyers said he was protecting himself and other subway passengers from an erratic, mentally ill man who made disturbing comments and gestures. Prosecutors said Penny responded far too forcefully to someone he viewed as a danger rather than a person.

During the month-long trial, the anonymous jury heard from witnesses, police officers, pathologists, a Marine Corps instructor who trained Penny in chokehold techniques, and Penny’s relatives, friends and fellow Marines. Penny chose not to testify.

The case became a flashpoint in the national debate over racial injustice and crime, as well as the city’s ongoing struggle to address homelessness and mental health crises in a transportation system used daily by millions of New Yorkers.

Dueling demonstrations sometimes occurred outside the courthouse, and senior Republican politicians portrayed Penny as a hero while prominent Democrats attended Neely’s funeral.

Marcelo writes for the Associated Press. AP writer Michael Hill in Albany, N.Y., contributed to this report.