A judge in New York is refusing to dismiss the case against hero U.S. Marine veteran Daniel Penny in which he is being charged with second-degree manslaughter and criminally negligent homicide by NYC’s Soros DA Alvin Bragg after Jordan Neely died from being put in a chokehold on a subway last May.

Penny was only trying to protect the people on the train after the mentally unstable Neely had threatened to kill passengers and was acting out against them.

But the judge denied a motion to dismiss the case and the trial is expected to happen this fall.

Here’s more from NBC New York:

A judge has denied a motion by attorneys for Daniel Penny, the U.S. Marine veteran who placed Jordan Neely in a deadly chokehold aboard a New York City subway last year, to dismiss the case.

The decision came in court on Wednesday. The judge ordered Penny back to court in late March. His trial is tentatively expected to start in the fall. Penny’s attorney didn’t comment after the hearing.

Penny, 24, has pleaded not guilty to second-degree manslaughter and criminally negligent homicide in the May 1 death of Neely, a former Michael Jackson impersonator who was shouting and begging for money on the Manhattan train, according to witnesses.

Penny pinned him to the ground with the help of two other passengers and held him in a chokehold for more than three minutes. Neely, 30, lost consciousness during the struggle.

The chokehold death, which was caught on bystander video, prompted fierce debate, with some praising Penny as a good Samaritan and others accusing him of racist vigilantism. Penny is white and Neely was Black.

In an October court filing, Penny’s attorneys highlighted testimony from grand jury witnesses who were on the May 1 train. One of those riders, the motion reads, was afraid he “was going to die” when Neely approached.

To get a manslaughter conviction, which carries a prison sentence of up to 15 years, prosecutors would have to prove Penny recklessly caused Neely’s death while being aware of the risk of serious harm.

A conviction for criminally negligent homicide would require the jury to find that Penny unjustifiably put Neely at risk of death, but failed to perceive that risk. The maximum penalty would be four years in prison.