A Bronx man seen in a video last year helping Daniel Penny restrain a homeless man on a subway car floor testified on Tuesday that he stepped in thinking that his assistance would mean that Mr. Penny would release his chokehold.
The man, Eric Gonzalez, told jurors in Mr. Penny’s manslaughter trial that he had entered the subway at Broadway-Lafayette Street station on May 1, 2023, and came upon the men — Mr. Penny and Jordan Neely — struggling on the floor. Mr. Penny had his arms around Mr. Neely’s neck and his legs around his waist. Mr. Gonzalez said he immediately waved his hand before Mr. Penny to get his attention and let him know that he would hold Mr. Neely’s arms.
Mr. Gonzalez, whom prosecutors had called to the stand, said that he thought that if he helped, then Mr. Penny might adjust his hold on the other man’s neck. When Mr. Penny didn’t, Mr. Gonzalez held Mr. Neely anyway.
As the minutes ticked by, Mr. Neely began to struggle, shifting and trying to break free. Eventually, Mr. Neely went limp and the men let go, he said.
“I tried to shake Jordan Neely to get a response out of him,” Mr. Gonzalez said. He tried to put Mr. Neely in a “recovery position” on his side, felt for a pulse then “I walked away.”
Last year, footage of Mr. Penny choking Mr. Neely, a Michael Jackson impersonator with a history of mental illness, reverberated across the internet. Some New Yorkers saw Mr. Penny’s act as criminal and others saw his actions as the manifestation of transit riders’ fears and frustrations.
Mr. Gonzalez’s testimony came at the start of the trial’s fourth week, after that of about two dozen other witnesses. In just over an hour on the stand, Mr. Gonzalez appeared nervous as he walked the jurors through the scene in the subway and his days of fear while waiting for the police to find him. Scared he would be charged, he decided to lie low, he told jurors. And when the police found him, he initially lied, “trying to justify my actions of me having my hands on him.”
Jurors have heard from other passengers, police officers and M.T.A. employees, witnesses whose testimonies will help them determine whether Mr. Penny was justified in believing that Mr. Neely had posed a deadly threat.
Other passengers described the harrowing moments after Mr. Neely boarded the train and strode through the car, yelling at passengers. They described how he threw his jacket on the floor, yelled about being hungry and wanting to return to jail.
They told of the moment that Mr. Penny, a Marine veteran, wrapped his arms around Mr. Neely and took him to the floor.
Prosecutors have said that Mr. Penny’s actions could have been “laudable.” But they became criminal, prosecutors said, when he kept a chokehold on Mr. Neely after he was no longer a threat, after the train had stopped and the car doors had opened. Mr. Penny kept Mr. Neely in a chokehold for nearly six minutes, prosecutors said.
Mr. Penny’s legal team has argued that he had stepped in to protect other riders and that he did not squeeze Mr. Neely’s neck hard enough to kill him.
On the afternoon of Mr. Neely’s death, Mr. Gonzalez said he was distracted, looking at his phone and answering work emails when he boarded the F train. It took him several seconds to notice the people fleeing the car that he had just entered and the two men locked in a struggle.
He heard cries around him for the police and assumed that Mr. Penny was trying to subdue Mr. Neely, he testified. However, he had no idea why Mr. Neely, whom he described as wearing the clothes of “a vagrant,” was being held.
The video a bystander captured begins with a view from outside the car through a window. Inside, Mr. Penny lies on his side with his arms and legs wrapped around Mr. Neely.
Within seconds, Mr. Gonzalez, who was standing above the men, grabs Mr. Neely’s raised wrist and arm, holding it down. In under a minute, Mr. Gonzalez has both of Mr. Neely’s arms pinned. As Mr. Neely tenses his muscles and moves, Mr. Penny and Mr. Gonzalez hold firm.
“We’re not going to let you go until the cops arrive” Mr. Gonzalez recalled telling the struggling man. At one point, Mr. Gonzalez can be heard telling others to call the police.
When another man warned that they could kill Mr. Neely, Mr. Gonzalez became frustrated. The man was on a FaceTime call “rather than trying to help,” he recalled thinking, and he tried to “shut him up.”
Shortly after, Mr. Neely went limp.
“Then I let go,” Mr. Gonzalez testified. “Then Daniel Penny let go.”
Mr. Gonzalez said he put Mr. Neely on his side, tried to shake him awake and felt for a pulse. When Mr. Neely remained unconscious, he became scared “that a person could die,” he testified.
“I was extremely scared,” he testified. “I tried to leave as soon as possible.”
Mr. Gonzalez said he left the station quickly, went to a job site and then home. As news of Mr. Neely’s death circulated that night, Mr. Gonzalez recalled becoming more scared. When his image began spreading online, Mr. Gonzalez said, he put in for all his vacation time and didn’t leave his home. When he learned Mr. Penny was being charged, Mr. Gonzalez panicked, he said.
After the police found Mr. Gonzalez, he said, he hired a lawyer and went to the Manhattan district attorney’s office for an interview. At first, worried that he might be charged with murder, he lied to prosecutors and said “that Neely had struck me first, and, immediately after, Daniel Penny had come after him,” he told the jurors.
But after prosecutors showed him images of him entering the subway and chancing on the struggle, he corrected his account, he said.
On cross-examination by Mr. Penny’s lawyer on Tuesday, Mr. Gonzalez said that prosecutors had told him recently that he would not face charges for his actions on the train that day.
The fear he felt in the days after Mr. Neely’s killing hasn’t abated, he said on Tuesday.
“All these protests going on, I’m scared for myself,” he told the courtroom. “I’m scared for my family.”
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