Onlooker warned Daniel Penny 'He's dying!' during Jordan Neely chokehold death on subway

NEW YORK — A Manhattan jury hearing the manslaughter case against Daniel Penny Monday saw footage of the fateful encounter with Jordan Neely in which — as Penny has his arm tightly gripped around Neely’s neck— an onlooker shouts at him to stop:

“He’s dying. You gotta let go!” the onlooker is heard saying.

The footage, captured by Ivette Rosario, 19, is believed to be the first shot of the encounter via the train platform at the Broadway-Lafayette subway station. She s aid she was on the F train heading uptown when Neely boarded a stop earlier at Second Ave.

Rosario, a high school senior originally from the Dominican Republic, said Neely had boarded the train and began screaming, including saying that he “didn’t care about going back to jail.”

She described feeling so nervous that she thought she was going to pass out and said she looked away when Neely began screaming.

“I got scared by the tone by the way he was saying it,” she said of Neely’s comments upon boarding the train car. “I have … seen escalations, but not like that.”

Rosario testified that she didn’t register Neely directing his dismay or threats at any passenger in particular. She said she noticed Penny and Neely on the subway floor after looking up when she heard a loud fall.

After the train reached the next stop, Rosario and the other passengers got off. She filmed the cell phone video from outside the subway car and called 911.

Rosario said she didn’t hear the onlooker’s warning to Penny at the time or until watching her video.

Penny, 26, has pleaded not guilty to second-degree manslaughter and criminally negligent homicide and faces up to 15 years in state prison if convicted of the top count. His defense claims he acted reasonably in subduing Neely to protect passengers from threats by someone who appeared mentally unstable and claims he heard Neely say, “I will kill.”

His lawyers are also contesting the medical examiner’s ruling that Neely died by homicide by compression of the neck.

The former infantry squad leader from Suffolk County, L.I., served for four years and was studying architecture at the time of the incident.

Neely, who grew up in New York and New Jersey, was once familiar to many New Yorkers for his street performances paying homage to Michael Jackson. His mother was murdered when he was 14 years old, which his loved ones have said was derailing for him. In the years before his death, he struggled with untreated mental illness and substance use disorder and accrued a significant arrest record.

In opening statements Friday, a prosecutor, Dafna Yoran, said Penny initially acted with good intent to protect passengers on the train for the approximately 30 seconds it took to travel from Second Ave. to the next stop.

But she said Penny had nobody left to keep safe when he unnecessarily and “recklessly” spent another five minutes and 53 seconds choking Neely on the emptied subway car at Broadway-Lafayette “in contravention of both law and human decency.”