By admin 
NEW YORK CITY (WABC) — Opening statements begin Friday for Daniel Penny, the Navy veteran charged in the May 2023 subway death of Jordan Neely.
The jury in the trial will see evidence showing Neely was unarmed, the judge said in a written opinion issued Thursday.
The defense had tried to exclude evidence or testimony about the lack of a weapon recovered during a search of Neely’s body, but Judge Maxwell Wiley said such evidence and testimony is relevant to the case.
“The fact that Mr. Neely was unarmed provides additional relevant information to assist the jury, namely: It clarifies what someone in the defendant’s position could have observed,” Wiley said. “The possibility that a person in the defendant’s situation might have been reasonable in mistakenly believing that Mr. Neely was armed is appropriate for the jury’s consideration and well within their capabilities.”
The defense worried that including evidence that Neely was unarmed could increase sympathy for the victim, but the judge said it would help the jury decide whether Penny’s actions were justified.
“The suspect’s perception of the deceased, Mr Neely, is central to that analysis, and as such the question of whether he was armed, or could reasonably have been expected to be armed, is relevant to a fact in issue, namely that Mr. Neely presented the threat of physical force or deadly physical force before the defendant took action,” the opinion said.
A jury consisting of seven women and five men were on Wednesday.
Penny has pleaded not guilty to charges of second-degree manslaughter and negligent homicide in Neely’s death.
The trial is expected to last between four and six weeks, according to Judge Max Wiley.
ABC News contributed to this report.
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