Judge tosses manslaughter charge against Daniel Penny at prosecutors' request

The judge presiding over the trial of accused New York subway vigilante Daniel Penny has granted prosecutors' request to dismiss the first and most serious charge of manslaughter, reported NBC News — leaving the jury to deliberate the less serious charge of criminally negligent homicide.

Prosecutors asked for the dismissal because the jury was intractably deadlocked over the more serious charge. Under the rules of New York criminal procedure, the jury couldn't even move on to deliberating on the second charge without making a decision one way or the other on the first. However, the jury was not told that prosecutors had made the request.

The jury is set to resume deliberating Monday on the criminally negligent homicide charge.

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Penny, an architecture student and veteran of the Marines, was charged after an incident last year, where he encountered Jordan Neely, a former Michael Jackson impersonator who was homeless, behaving erratically on the subway and saying he didn't care if he died or went back to jail. Penny placed Neely in a chokehold that lasted several minutes, ultimately leading to Neely's death.

Penny pleaded not guilty to the charges and said he never meant to kill Neely, only using enough force as he saw necessary to protect other passengers from someone he believed to be a threat, until police could arrive.

The case has become a massive political debate, with many right-wing commentators hailing Penny as a hero trying to keep the subway safe, and criminal justice advocates accusing him of murder and violent racial profiling. It has also inflamed debate over whether large cities around the country have competently addressed civil order, homelessness, and mental health care.