The Marine veteran who is accused of choking to death a street performer on a New York City subway, Daniel Penny, will face trial for the crime on October 8, a state judge has decided.

The judge in the case, Maxwell Wiley, set the date in New York County Supreme Court on Wednesday. Mr. Penny, 26, has pleaded not guilty to charges of second-degree manslaughter and criminally negligent homicide in the death of Jordan Neely.

Judge Wiley had earlier declined a motion by Mr. Penny’s defense to dismiss the charges. Mr. Penny’s attorneys had argued that the ex-Marine had “risked his own life and safety” to protect other subway passengers from Neeley, whom they described as “insanely threatening.” 

Neely, had been known for his moonwalking Michael Jackson impersonations on the subway, was reportedly shouting and acting erratically in the leadup to the incident on May 1, 2023. 

Mr. Penny’s defense lawyers had further questioned instructions the prosecutor gave to the grand jury and the city medical examiner, who ruled Neely’s death a homicide as a result of “compression to the neck.” 

The judge at the time was not convinced and said, the death certificate clearly established “that defendant’s actions caused the death of Neely.”

Mr. Penny did not make any further comments to reporters on Wednesday. He held his head high, as he walked in and out of the courtroom, flanked by his lawyers, dressed in a dark suit, white shirt, and maroon colored tie.

Outside the courthouse, an attorney representing Neely’s family, Lennon Edwards, told reporters that the family is “still suffering, they’re still in pain.”

If convicted, Mr. Penny could serve between five and fifteen years in prison for manslaughter, and up to four for negligent homicide. The next pre-trial court hearing is scheduled for September 17.