By Jonathan Allen

NEW YORK (Reuters) – A former U.S. Marine sergeant charged with manslaughter for killing Jordan Neely, a homeless man, on the New York City subway was due back in court on Wednesday for a judge’s decision on his motion to dismiss the indictment.

Daniel Penny was captured in videos recorded by bystanders putting Neely in a chokehold from behind for several minutes on May 1, while they rode on a subway train in Manhattan. The killing gained widespread public attention, with some viewing Neely, who was Black, as a victim of a vigilante, and others, including some Republican politicians, treating Penny as a hero.

Penny, who is white, pleaded not guilty later that month to charges of manslaughter and criminally negligent homicide in the Manhattan criminal court. He was released from custody on a $100,000 bond. The most serious charge is a felony that carries a maximum sentence of 15 years in prison.

Judge Maxwell Riley of Manhattan Supreme Court will decide on the motion to dismiss.

Neely was a 30-year-old former Michael Jackson impersonator who had struggled with mental illness and had spent time in the city’s strained shelter system. In the minutes before he was killed, he had been shouting about how hungry he was and that he was willing to return to jail or die, according to passengers in the car.

Penny has said he acted to defend himself and other passengers, and did not intend to kill Neely. His lawyers have argued that prosecutors did not present sufficient evidence of this to the grand jury that issued the indictment.

Police questioned Penny on the day Neely died, but he would not be arrested and make an initial court appearance until 11 days later.

Witnesses have said Neely did not physically threaten or attack anyone before Penny grabbed him. His killing renewed debate about gaps in the city’s systems for homeless and mentally ill New Yorkers.

(Reporting by Jonathan Allen in New York; Editing by Bill Berkrot)