Prosecutors on Monday presented “the most critical piece of evidence” at the trial of Daniel Penny, the Marine veteran who put a homeless Michael Jackson impersonator in a fatal chokehold on a New York City subway last year. Video of the tragic incident, recorded by freelance journalist Juan Alberto Vázquez on his cellphone, which went viral and triggered city-wide protests, was played in court on Monday.   

Assistant District Attorney Dafna Yoran, who is prosecuting the case on behalf of the Manhattan district attorney, Alvin Bragg, told the jury in her opening remarks last Friday, “you will see Mr. Neely’s life being snuffed out with your own eyes,” when they watch video footage of the incident, which Ms. Yoran described as “the most critical piece of evidence at this trial.” 

On Monday, the prosecution called the freelance journalist Mr. Vázquez to the witness stand. “I entered the 7th Avenue station of the northbound F train,” Mr. Vázquez said, referring to a train station in the Park Slope neighborhood of Brooklyn. “I was going to Yonkers to do some interviews for the Diario. I sat down in the second car.” 

Mr. Vázquez, 59, moved from Mexico after his wife was offered a job in New York. He explained that he works as a freelance journalist for El Diario Nueva York, the largest and oldest Spanish-language newspaper in America. On May 1st, 2023, Mr. Vazquez was in the same subway car as Mr. Penny and Jordan Neely, and captured the moment Mr. Penny placed Neely in a chokehold on his phone. He published the video later and, once online, it spread like wildfire. Some media outlets consider the video to be the reason that Mr. Penny was charged with second-degree-manslaughter and negligent homicide; combined these charges carry a maximum of 19 years in prison.  

Before Assistant district attorney, Jillian Shartrand, who was questioning the witness and is prosecuting the case alongside Ms. Yoran, played the video to jurors, in what she said, was a longer version than what had been posted online, she asked Mr. Vazquez to describe the moment Neely, a 30-year-old street performer known for his Michael Jackson impersonations, boarded the train. 

“Neely entered,” Mr. Vazquez said. “And almost immediately he started to give a speech, in that speech he complained, from what I understood, that he was thirsty, he was hungry, and…  he didn’t care to be thrown in jail again… He was a person of African American race and he was dressed in sports clothes.”  

Mr. Vazquez confirmed that Neely had no weapons on him, and that he didn’t “touch” anyone, he also said that Neely’s tone of voice was “violent and desperate.” 

“It didn’t seem to me like he wanted people to give him food or money… The tone of his voice, it was loud. I was a bit nervous, and scared,” the journalist said. Then he described how Neely took off his jacket and tossed it on the floor. He said he could hear the zipper hit the floor. “And then I saw the coat there,” Mr. Vazquez said. He did not see, however, how Mr. Penny grabbed Neely from behind, because two passengers, a couple, were blocking his view. But he heard a loud thump, 

According to Mr. Vazquez, the train had already pulled into the next station, Broadway-Lafayette, underneath Manhattan’s trendy NoHo neighborhood, when he heard “the sound of bodies falling to the floor.”

“At that time the train stopped,” he testified. “All the people left, myself too.” Mr. Vazquez said he observed, from outside the train car, that Mr. Penny had grabbed Neely from behind, and placed him into a chokehold. 

”We were out,” he added, referring to the platform and the other passengers, “people were trying to get help. Some people were trying to contact the conductor… Someone advised the conductor and someone called the police… I was standing outside, right by the window… at some point I took my cell phone out and started to film because I am a journalist, and that was a violent act in the subway and I thought that should be recorded.” 

When Ms. Shartrand played the harrowing video that showed Mr. Penny holding Neely in a tight chokehold, and Neely trying to break free,  Neely’s father, Andrew Zachery, who was in the courtroom, buried his head in his hands. When Mr. Vazquez began describing the video, he stood up and left the courtroom. He returned after Mr. Vazquez’s testimony was finished.  

Mr. Penny showed no emotion, not in the courtroom, and not on the video, where he is seen, after he released Neely, getting up and picking up his hat from the floor. 

Another video that was shown on Monday, which had never been seen by the public before, was recorded by a 19 year-old high School student, Ivette Rosario, who was also on the train on the tragic day, and testified before Mr. Vazquez.   

She told the jury that the tone of Neely’s voice made her “very nervous” so much so that she hid her head in her friend’s chest. She was also asked to describe Neely’s behavior when he entered the train car, and told the jury that she “got scared by the tone” of Neely’s voice, “he had like this angry tone.” 

Ms. Rosario didn’t recall Neely saying, “he was gonna take things from people,” she testified, but she did recall Neely saying, “Someone was going to die today.” 

“I was nervous and scared,” Ms. Rosario said. “I just wanted the doors to open so I could leave. When I picked my head back up, I heard a noise… I saw them both on the floor… The white man was holding on to him.”

Ms. Rosario, whose video is also filmed from the platform, once the train had pulled into the next station, also recorded her own hand, which was trembling with fear. The video further shows another passenger, a woman, who tells Mr. Penny to stop choking Neely. “He is dying,” the woman can be heard calling out, “you gotta let him go.”   

Another subway passenger who was on that train testified on Monday. Larry Goodson, 51. He told the jury that Neely caught his attention when he shouted he was ready to go to prison. Mr. Goodson added that he himself had been to prison, and had never heard a person saying they wanted to go jail. 

“I never heard anyone say they are ready to go to jail,” Mr. Goodson said.   

But he did not feel threatened by Neely, “I was not threatened. I was not fearful,” Mr. Goodson added. “This individual was not threatening me.” 

When Mr. Penny held Neely in the chokehold, Mr. Goodson said he thought he noticed Neely defecate and urinate on himself, and so he told Mr. Penny to stop. 

“I said if he’s defecating or urinating on himself, you’re going to let him go because you’re going to kill him,” Mr. Goodson testified.

The courthouse is closed tomorrow for Election Day. On Wednesdays the judge attends to other matters. The trial will resume on Thursday.