Former US Marine Daniel Penny (C) arrives at Manhattan criminal court for his arraignment on manslaughter charges in connection with the chokehold death of Jordan Neely, in New York, June 28, 2023.  (Photo by Yuki IWAMURA / AFP) (Photo by YUKI IWAMURA/AFP via Getty Images)
CNN  — 

Citing witness testimony, defense attorneys for Daniel Penny asked a New York judge to dismiss the case against the former marine accused of killing a homeless street artist on a New York City subway.

Penny held 30-year-old Jordan Neely in a chokehold during a May incident when Neely entered a subway car and began shouting at passengers. Neely died soon after, and the medical examiner ruled his death a homicide.

In a motion filed Friday, Penny’s attorneys cited grand jury testimony from witnesses riding the subway during the incident, one of whom believed they were “going to die,” in an effort to dismiss the charges. That unnamed witness, who said they have ridden the New York subway for six years, described the moment as “absolutely traumatizing,” court documents say.

Another witness, a mother, said she took cover behind her stroller with her son to shield themselves from Neely, who was making “half-lunge movements” and within “half a foot of people,” the documents say.

A grand jury indicted Penny on charges of manslaughter and criminally negligent homicide in June even after hearing this testimony.

CNN previously reported Penny told police that Neely was acting “irate,” prompting him to use the chokehold to subdue him.

The incident between Neely, a Black man, and Penny, who is White, was partially caught on video and sparked demonstrations across New York City.

The Manhattan District Attorney’s Office declined to comment on the new motion but said it would be filing a response in court papers soon.

Penny’s next court date is set for early December.