A judge dismissed a manslaughter charge against Daniel Penny, who fatally choked Jordan Neely, leaving jurors to consider a criminally negligent homicide charge.

Jurors have started deliberating in the trial of Daniel Penny, a military veteran charged with using a fatal chokehold to subdue Jordan Neely, whose behavior was alarming passengers on a New York subway City train.

The jury in Daniel Penny’s trial in the NYC subway death of Jordan Neely is set to return to court Monday to deliberate on a lesser charge after the group could not reach a unanimous verdict on a manslaughter charge.