Penny has pleaded not guilty in the case, which sparked debate and division locally and across the country.
After the death of Neely, who was Black, protesters demanded that authorities arrest Penny, who is white. Others rallied in support of Penny outside the courthouse once he was charged. The case also became a cause célèbre among Republican presidential hopefuls.
Penny, who served four years in the Marines before being discharged in 2021, has been free on a $100,000 bond. He faces up to 15 years in prison if convicted of second-degree manslaughter and up to four years if convicted of criminally negligent homicide.
An initial group of 136 potential jurors were brought into the Manhattan courtroom Monday for a first round of screening focused on whether they have work or family obligations that could keep them from serving on a trial that's expected to continue into December.
When the first group of people were asked whether any had heard of the case, nearly everyone in the packed courtroom raised a hand to indicate yes.
“Not a surprise,” Judge Maxwell Wiley said.
“Even if you have formed an opinion about it, that does not disqualify you from serving on this case,” he said, adding that anyone who is picked for the jury must keep an open mind.
Penny, at times when prompted by the judge, briefly stood and waved to prospective jurors and greeted them with a soft “good morning” or “good afternoon.”
Otherwise, he sat mostly facing the judge in his blue suit and maroon tie as potential jurors were called up individually to the bench to explain their potential scheduling issues.
Those asking not to be placed on the jury cited holiday travel plans, faraway weddings, house moves and other personal obligations.
By the end of the day, some 45 people were asked to return for the next stage in the screening on Friday; the rest were excused.
The selection process is expected to continue Tuesday, and it will likely be days before prospective jurors are questioned about any beliefs, personal connections or life experiences that could affect their ability to serve fairly and impartially.
Witnesses to the incident said Neely — who struggled with drug addiction, mental illness and homelessness — had been shouting and demanding money when Penny approached him.
Penny pinned Neely to the ground with the help of two other passengers, and placed him in a chokehold for more than three minutes until Neely's body went limp. The medical examiner's office ruled the death a homicide caused by compression of the neck.
Neely’s father, Andre Zachery, was among those in courtroom audience Monday. The family's lawyer, Donte Mills, said outside court that Zachery is feeling hurt and seeking justice for his son.
“This is going to be a very simple case that’s easy for the jury to deliberate on," Mills said. “The facts of the case is this: someone got on the train and was screaming, and someone choked that person to death. Those things will never balance out and there’s no justification that can make those things balance out.”
Penny’s lawyers have argued that the Long Island native didn’t intend to kill Neely, just to hold him down long enough for police to arrive. Penny has claimed Neely shouted, “I’m gonna kill you” and that he was “ready to die” or go to jail for life.
“We feel that the truth is only going to come out through this trial," Steven Raiser, one of Penny’s lawyers, said outside court. "There’s a lot of evidence that people aren’t aware of. There’s a lot of assumptions that have been made that are going to be dispelled once we have all the evidence.”
Raiser has said the defense plans to offer up other potential causes of Neely’s death, including high levels of the synthetic cannabinoid known as K2 found in his body.
They’ll also argue that video shared widely on social media proves Penny was not applying pressure consistently enough to render Neely unconscious, much less kill him.
Penny's lawyers said Monday that they hadn't decided whether he will testify.
Prosecutors, in their court filings, have argued that Penny’s actions were reckless and negligent even if he didn’t intend to kill Neely. Manhattan District Attorney Alvin Bragg’s office declined to comment ahead of the trial.
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Follow Philip Marcelo at twitter.com/philmarcelo. Associated Press writer Jennifer Peltz contributed.
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