Daniel Penny's attorney confident he will be 'fully exonerated' after judge denies motion to dismiss charges

Daniel Penny's legal team is "not surprised" a New York judge denied his request to drop criminal charges stemming from the death of a homeless man during a subway altercation last year. 

Penny's attorney, Thomas Kenniff, joined "Fox & Friends" Friday to react to the ruling, expressing confidence that his client will be "fully exonerated" by a jury later this year.

"We're not surprised because… really it's less about the judge and much more about the very low standard of proof in the grand jury, in a grand jury in New York," Kenniff told Steve Doocy. "So the standard of proof, in a grand jury is reasonable cause, and just to put that in context, Steve… that's less than a police officer would need to issue us a summons on the street or make an arrest for a petty offense." 

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"It's also not a unanimous vote like you would see in a trial jury," he continued. "If 12 out of 23 jurors vote for indictment, the DA gets an indictment. That's why they always indict. So the judge reviewing our motions really has no legal choice but to apply that same absurdly low standard, and that's why it's a very low percentage play to ever get an indictment dismissed."

The case stems from a May 1, 2023 altercation on the F subway train in Manhattan, where witnesses say Jordan Neely, a homeless man and former Michael Jackson impersonator, was shouting and begging for money.

Penny pinned Neely to the ground with the help of two other passengers and held him in a chokehold for several minutes, according to prosecutors. 

Penny's lawyers argued in court filings that Neely's erratic behavior was "insanely threatening," and the Marine veteran stepped in to defend himself and other passengers. 

Despite race-based backlash surrounding the case, Kenniff said many New Yorkers resonate with concerns stemming from heightened crime in the Big Apple – subways specifically. 

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"The reality is that the support our client has received has been overwhelming… since the judge denied the motion, which didn't come as a surprise," Kenniff said. "Within 24 hours after that, there was about $100,000 in online donations to support his legal defense fund."

"We think that the mood in this city and beyond is very much in support of our client, because so many people know what it's like if you walk the streets of New York, if you take the subway, to experience exactly the situation," he continued. "But there's not always a savior like my client to step in."

Eleven days after the fatal incident, Penny turned himself in to the Manhattan District Attorney's Office, which filed criminal charges of second-degree manslaughter and criminally negligent homicide. Penny pleaded not guilty. 

"No one would ever want to be in this situation," Kenniff said. "Even if you're fully exonerated, as I have no doubt our client will be, it's a harrowing experience. Having said that… he's a Marine. He knows what it means to serve. If there is anyone who has the metal to deal with something like this, it's him, and he's holding his head up high, is continuing with his studies. He is doing as well as anybody possibly could under these circumstances."

Penny's trial is likely to take place in early fall, according to Kenniff. 

Fox News' Danielle Wallace, Chris Eberhart and Rebecca Rosenberg contributed to this report. 

Bailee Hill is an associate editor with Fox News Digital. Story ideas can be sent to This email address is being protected from spambots. You need JavaScript enabled to view it.