Judge denies Marine vet Daniel Penny’s motion to dismiss case in subway chokehold death

A New York City judge denied Daniel Penny’s motion to dismiss the criminal case against the Marine veteran, who killed Jordan Neely with a chokehold on a subway last May.

“While we disagree with the Court’s decision not to dismiss the indictment, we understand that the legal threshold to continue even an ill-conceived prosecution is very low,” Penny’s attorney, Thomas Kenniff, said in a statement after Penny appeared in court Wednesday.

“We are confident that a jury, aware of Danny’s actions in putting aside his own safety to protect the lives of his fellow riders, will deliver a just verdict. Danny is grateful for the continued prayers and support through this difficult process.”

Donte Mills, Neely’s family attorney, said Judge Maxwell Wiley’s decision was a “big win.”

US MARINE VET DANIEL PENNY PLEADS NOT GUILTY TO MANSLAUGHTER IN CHOKEHOLD DEATH OF JORDAN NEELY

“(Penny’s) attorneys tried to get the judge to ignore the grand jury by throwing the charges out. It didn’t work,” Mills said after Wednesday morning’s ruling. “The criminal charges against Daniel Penny will move forward.”

In addition to asking for the indictment to be dismissed, Penny’s lawyers wanted the court to suppress Penny’s statements to law enforcement, invalidate search warrants and suppress any evidence obtained.

Those motions are “still outstanding,” Mills said. “But we know now that this case will move forward.”

JORDAN NEELY SUBWAY CHOKEHOLD CAPTURED ON MORE VIDEO THAN PREVIOUSLY KNOWN, PROSECUTORS REVEAL

The case stems from a May 1, 2023 altercation on the F subway train in Manhattan, where witnesses say Neely, a homeless man and former Michael Jackson impersonator, was shouting and begging for money.

Penny pinned Neely to the ground with the help of two other passengers and held him in a chokehold for several minutes, according to prosecutors. 

WATCH: NEELY’S LAWYER AND FATHER SPEAK TO REPORTERS AFTER WEDNESDAY’S DECISION

Neely, 30, lost consciousness during the struggle. 

Penny’s lawyers argued in court filings that Neely’s erratic behavior was “insanely threatening,” and the Marine veteran stepped in to defend himself and other passengers. 

DANIEL PENNY: MARINE VET ACCUSED OF FATAL SUBWAY CHOKEHOLD REVEALS WHY HE STEPPED IN

Eleven days after the fatal incident, Penny turned himself in to the Manhattan District Attorney’s Office, which filed criminal charges of second-degree manslaughter and criminally negligent homicide. Penny pleaded not guilty. 

Videos that captured Penny, who is White, holding Neely, who was Black, in a chokehold on the subway went viral and sparked racial justice protests.

Protesters outside the courthouse on Wednesday shouted at Penny and called him a murderer, while others have hailed him as a hero who defended New Yorkers. 

He was released the same day he turned himself in on $100,000 cash bail and was ordered to turn over his passport. He is due back in court on March 20.

Notably, celebrity civil rights activist Rev. Al Sharpton gave a eulogy at Neely’s funeral, blasting the decision not to arrest Penny on the spot. 

WITNESS TO JORDAN NEELY CHOKEHOLD DEATH CALLS DANIEL PENNY A ‘HERO’

Penny, a former infantry squad leader and an instructor in water survival deployed twice from 2017 to 2021, rejected accusations that his actions were racist, telling Fox News Digital in an interview over the summer, “The majority of the people on that train that I was protecting were minorities, so it definitely hurts a lot to be called that.” 

Neely, who struggled with mental illness, had been arrested more than 40 times, including for numerous violent assaults on strangers in the subway, and was on the city’s “Top 50” list of homeless people most in need of outreach, the New York Post previously reported. 

One witness, who described herself as a woman of color, previously told Fox News Digital that Neely boarded the subway train that May 1 afternoon, ranting, “I don’t care if I have to kill an F, I will. I’ll go to jail, I’ll take a bullet.”

“It was self-defense, and I believe in my heart that he saved a lot of people that day,” the woman said. 

Fox News’ Rebecca Rosenberg contributed to this report.