NRPLUS MEMBER ARTICLE D aniel Penny is now scheduled to be arraigned in Manhattan criminal court on two counts of homicide in connection with the May 1 death of Jordan Neely. The arraignment will take place on June 28, according to a spokesperson for the office of Manhattan district attorney Alvin Bragg, the New York Post reports.

Penny was indicted on Wednesday by a grand jury. In Manhattan, it is customary for the indictment to be unsealed at the time of arraignment. Penny’s indictment has not been unsealed, but it has been reported that he is charged with two counts: second-degree manslaughter and criminally negligent homicide. The difference between these charges is essentially the difference between recklessness and mere negligence.

Under Section 125.15 of the Empire State’s penal code, second-degree manslaughter occurs when a person “recklessly causes the death of another person.” The statute says that a person acts recklessly, in this context, when he “is aware of and consciously disregards a substantial and unjustifiable risk that [death] will occur.” The risk involved must be of such a nature and degree that this conscious disregard of it “constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” Second-degree manslaughter carries a potential sentence of up to 15 years in prison.

By contrast, Section 125.10 provides that criminally negligent homicide occurs when “with criminal negligence, [a person] causes the death of another person.” The statute says that a person acts with criminal negligence, in this context, “when he fails to perceive a substantial and unjustifiable risk that [death] will occur.” The act is deemed negligent, rather than reckless, because the actor fails to perceive the risk of death, rather than perceiving but consciously disregarding it. Criminally negligent homicide carries a potential sentence of up to four years in prison.

I suspect that Bragg is engaged in strategic charging here. In light of Neely’s menacing behavior on the subway car before Penny intervened, the prosecutor grasps that a jury could easily conclude that Penny was justifiably acting in self-defense (which legally extends to the defense of other people as well). If Bragg had charged just one count, the issue would come down to “guilty or not guilty?” — and the jury could find that not guilty was the fairer result.

Bragg’s adding a second count changes the calculation. Sure, he’d love to convict Penny on both counts, but to be seen as “winning” the case, he needs to get Penny on one count. Bragg no doubt figures that, if the jurors were to find that the recklessness charge is overblown, they could see the negligence charge as more reasonable. That is, they might well decide that convicting Penny of negligence, while acquitting him of recklessness, is a fairer result than acquitting him entirely. The DA may also believe that Penny could be persuaded to plead guilty to the negligent-homicide charge, capped at four years’ imprisonment, in order to avoid the possibility of a 15-year sentence for second-degree manslaughter.

For his part, then, Penny faces a tough choice. He could argue that the negligence count is just a subset of the recklessness count — i.e., that Bragg has taken what is really one offense and multiplied it into two to increase the chances of getting a conviction. But the remedy for that would be to eliminate the less-serious negligence charge — meaning, if he weren’t acquitted, he’d be looking at a harsher sentence.

We will have to see how it plays out. For now, I’ll just say that Bragg, an elected progressive Democrat who generally favors non-prosecution, has chosen the worst way to deal with Neely’s tragic death.

The incident on the train happened because Neely — a dangerous, mentally disturbed felon — was threatening passengers. This was not an imaginary threat. Neely, a 30-year-old vagrant, had over 40 prior arrests, and had recently been released from a stint in the slammer for viciously punching a 67-year-old woman in the face at the Bowery train station in Greenwich Village, breaking her nose and orbital bone. You generally don’t have to have seen a sociopath’s rap sheet to know you are dealing with one. And dealing with one is especially frightening on the subway, where there are usually no police in sight and no safe retreats.

Under these circumstances, Penny, a 24-year-old former Marine infantry officer, stepped up to defend himself and the other passengers. Penny is white and Neely was black, but the confrontation was not racially motivated. This was a diverse train car of New Yorkers, Neely was intimidating all of them, and at least one of the passengers who assisted Penny in restraining Neely was black. No one has credibly suggested that Penny was in any way motivated by racial bias.

Yet, as always, the Bolshevik Left, well represented in New York City, turned it into a racial incident, soon turbo-charged by the inevitable and repulsive Al Sharpton incitements at Neely’s funeral. This put pressure on Bragg (though I think it was more like pushing on an open door), who needlessly had Penny arrested days after the incident — even though Penny had been released after questioning the day of the incident, the police knew exactly where he was, he was not a flight risk, and his legal team was in regular contact with the authorities. Bragg could have just proceeded to present the case to the grand jury, but he wanted the spectacle of putting Penny through the arrest process and having $100,000 bail set, in order to signal solidarity with the race-obsessed Democratic base that elected him.

And now he has given them the indictment they demanded — just as he did in indicting Donald Trump on bogus charges, after promising during the campaign that he would use the power of the office against Trump. The in terrorem effect is to warn every potential good Samaritan who might come to the aide of vulnerable people under attack: If you dare do that, you will be prosecuted aggressively by the guy who strains to avoid prosecuting actual criminals.

Since 2020, New York City has lost nearly half a million residents. That’s roughly the size of Miami’s total population (450,000). Meantime, close to 70,000 illegal aliens have flooded the Big Apple in the last few months, and the city lacks the housing, health, education, and law-enforcement resources to cope. Alvin Bragg continues doing his part to make Manhattan unlivable — and progressives continue to get the governance they voted for.