As Blavity previously reported, witnesses told police that Neely made threats against other passengers before getting into an argument with Penny. A video posted to social media showed the former U.S. Marine veteran putting the 30-year-old Michael Jackson impersonator into a chokehold as the argument escalated. Neely fell unconscious on the train and later died at the hospital.

Neely’s family attorney, Lennon Edwards, said Penny should have realized that Neely was struggling to breathe as he was placed into a chokehold. Another lawyer, Donte Mills, said Penny “acted with indifference,” ABC News reported. “For everybody saying, ‘I’ve been on the train and I’ve been afraid before, and I can’t tell you what I would’ve done in that situation.’ I’m gonna tell you — ask how you can help,” Mills said. “Please, don’t attack. Don’t choke, don’t kill, don’t take someone’s life.”

Neely, who was facing mental health challenges, had been arrested over 40 times, police said. After offering their condolences to Neely’s family, Penny’s attorneys argued that Neely “began aggressively threatening Daniel” — a claim that some witnesses have echoed while speaking to police following the incident.

Neely’s father, Andre Zachery, shared in an interview with the New York Daily News that Neely’s mother was murdered by her boyfriend in 2007. Although it had been four years since Zachery saw his son before his death, he praised his Michael Jackson impersonating skills. “He was very good at it. He was great at it,” he said. “I sat him in front of the TV and showed him the Jackson 5. … He took on the Michael Jackson thing and he really formed it very well.”

The medical examiner’s office ruled Neely’s death a homicide. Penny could face up to 15 years for second-degree manslaughter and is scheduled to appear in court again on July 17.