Witness in Daniel Penny Trial Admits to Inconsistent Testimony and Concerns about Legal Consequences

NEW YORK—A witness in the trial of Daniel Penny, a former U.S. Marine who is facing charges of manslaughter and criminally negligent homicide related to the death of Jordan Neely, took the stand on Nov. 12 to describe how he helped restrain Neely at the scene, and how he had initially lied to investigators out of fear that he might be held liable for the man’s death.

Eric Gonzalez, a 39-year-old groom manager at a casino, who spent his early years in the Dominican Republic before moving to New York, said he rides the subway every day.

His testimony overlapped significantly with, yet also departed in critical ways from, that of witnesses who were present when Neely, a mentally ill homeless man, provoked the confrontation that led to his demise on a Manhattan-bound F train on May 1, 2023.

After several days of testimony in which witness after witness described feeling terrified at Neely’s conduct, and suggested Penny had helped protect bystanders from a crazed man—Gonzalez expressed serious and ongoing fears he has about the potential consequences of having been involved in the incident.

In contrast to several witnesses on earlier days of the trial, who boarded the F train in Brooklyn or one of the first Manhattan stops on its uptown route, Gonzalez said that he entered the subway system that day at the Broadway-Lafayette station, one stop above Second Avenue, where witnesses are unanimous Neely boarded the train.

Gonzalez testified that he was on his way to a job site and was busy answering emails on his phone when the F train pulled into the station.

When the doors opened, people rushed out in a hurry, yet he still entered the train, where he soon saw two individuals on the floor, one of them holding down the other.

“Daniel Penny was holding down Jordan Neely. His legs were on his waist, and his arm around his neck,” Gonzalez stated.

“Everybody was frantic and saying, ‘Call the cops! Call the cops!’ And I see these two individuals on the floor, so I’m assuming one was trying to restrain the other until the cops came,” he said.

Gonzalez said he quickly “jumped in” to assist with restraining Neely. He waved his hand in front of Penny’s face, to let Penny know that he was there to help even though people still awaited the arrival of the police.

He also told Penny that he would grab Neely’s hands, to make things a bit easier for Penny.

“I didn’t think anything of it at the moment, I was just giving him an alternative. I meant, not completely let [Neely] go, but get your arm away from his neck,” Gonzalez said.

But even while prone and in a headlock, Neely was far from done resisting, and broke one of Gonzalez’s ribs in the struggle, the witness said.

The Recovery Position

Soon, when it appeared that Neely had finally passed out, Gonzalez said he tried to shake the prone man’s body and put Neely into a recovery position that Gonzalez had learned about from a health class.

At the time, Gonzalez said, he did not know that Neely would not survive the incident.

He continued on his commute to the job site he had set out for, and that evening saw news reports that mentioned Neely’s death and conveyed that the police were looking for a “Hispanic individual” captured in cell phone footage at the scene.

Gonzalez said he grew deeply afraid about what might happen to him. He used vacation days to avoid going to work and “went into hiding,” he recalled.

Eventually, he sought legal counsel and agreed to meet with an assistant district attorney.

But Gonzalez admitted that he gave the ADA a fake account of what had happened on May 1, 2023.

In this fictitious version, Gonzalez was already on the train when the incident began, Neely struck Gonzalez with his fist, and that was when Penny stepped in to restrain Neely.

A prosecutor asked Gonzalez why he had invented this false narrative.

“So that people could see that, in some sort of way, I was trying to justify my actions, for me having my hands on him,” Gonzalez said.

“Because [then] I wouldn’t be penalized for a person dying when I was there at the scene.”

Gonzalez said he knew the lie was up when investigators showed him a time-stamped photo of him swiping his Metrocard and moving through the turnstiles at Broadway-Lafayette.

In the face of this evidence, it was no longer possible to maintain he was already on the train before it arrived at that station.

Under questioning from defense lawyer Thomas Kenniff, Gonzalez acknowledged that he had received at least partial immunity from prosecution in return for sharing information about the incident.

Still, he was scared of possible legal consequences and actions that strangers might take outside legal channels.

“There’s all these protests going on. I’m scared for myself, I’m scared for my family. You don’t know what people are going to do,” he said.

Before the testimony got underway, a protest took place right outside the court building at 100 Centre Street, as a small crowd chanted Neely’s name.

During its cross-examination, the defense played footage from the scene of the incident and asked Gonzalez about a moment where he appeared to smile at the suggestion of another person present that he could face murder charges for his role in the incident.

The defense wanted to suggest that Gonzalez’s smile indicated the sheer implausibility of the notion that someone could face murder charges for what Gonzalez had done at the scene.

But Judge Maxwell Wiley sustained an objection from the prosecution.

“He denied smiling. Next question,” the judge said.

Yet defense lawyer Kenniff bore down on the idea that prosecutors were leaning on Gonzalez to go a certain way.

Besides Gonzalez, jurors heard the testimony of Derrick Clay, a barber who lives in Queens, and said he was taking the F train from East Broadway uptown when the incident began.

Unlike earlier eyewitnesses, Clay gave a much vaguer account of how the incident unfolded, attributing this largely to a crowded train where he couldn’t see much of what happened from his seat by the door leading to the next car.

Under sustained questioning from defense lawyer Kenniff, Clay acknowledged that Neely’s tone, which initially sounded “a little irate,” grew angrier and more aggressive as the incident developed.

The trial resumes on Nov. 14 with more witness testimony.