The judge overseeing the trial of a man accused of attacking an unruly subway passenger with a fatal chokehold dismissed the main charge in the case on Friday at prosecutors’ request and allowed jurors to try a lesser one charges to be considered after they said they disagreed whether Daniel Penny was guilty of manslaughter.

Judge Maxwell Wiley’s decision will allow jurors to consider a charge of involuntary manslaughter, which would carry a more lenient sentence.

Wiley asked the jury to consider the lower number, “but not today. Go home and think about something else.”

The judge’s decision came hours after a Manhattan jury sent him a note saying they were unable to agree on a manslaughter verdict. The jury had previously been told they would have to reach a verdict on the main charge before considering the involuntary manslaughter 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, which is punishable by a suspended sentence of up to four years in prison, is serious “reprehensible behavior” without awareness of such a danger.

Wiley had previously urged jurors to move on, praising them for being “very diligent in their deliberations” and noting that it was not unusual to have difficulty reaching a verdict.

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.

Penny is facing manslaughter charges for the second time, but jurors have been told they must reach a verdict on the manslaughter charge before they can proceed.

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, which is punishable by a suspended sentence of up to four years in prison, is serious “reprehensible behavior” without awareness of such a danger.

While the jury was out of the courtroom, Wiley acknowledged that he might have to consider whether they could simply move on to criminal negligence if they were deadlocked on the manslaughter charge. Prosecutors indicated they might be open to it.

Just before the lunch break began, 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.

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.

Since deliberations began on Tuesday, the jury has 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 for assaulting people in subway stations.

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

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 on a transit 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.

(Copyright 2024 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed without permission.)