NEW YORK CITY (WABC) — Opening statements will begin Friday for Daniel Penny, the Navy veteran charged in the May 2023 subway strangulation death of Jordan Neely.

The trial jury will see evidence showing Neely was unarmed, the judge said in a written opinion issued Thursday.

The defense had sought to exclude evidence or testimony about the lack of a gun recovered from a search of Neely’s body, but Judge Maxwell Wiley said such evidence and testimony is relevant to the case.

“The fact that Mr. Neely was unarmed provides additional relevant information to assist the jury, i.e., it clarifies what someone in the defendant’s position might have perceived,” Wiley said. “The possibility that a person in the defendant’s situation could have been reasonable in mistakenly believing that Mr. Neely was armed is appropriate for the jury to consider and is within their capabilities.”

The defense was concerned that including evidence that Neely was unarmed could increase sympathy for the victim, but the judge said it would help the jury decide whether Penny’s actions were justified.

“The defendant’s perception of the deceased, Mr. Neely, is central to that analysis and, as such, whether he was armed, or whether he could reasonably have been perceived to be armed, is relevant to a fact at issue, namely, that Mr. Neely presented the threat of physical force or deadly physical force before the defendant took action,” the opinion says.

A jury made up of seven women and five men They were sitting on Wednesday.

Penny has pleaded not guilty to charges of second-degree murder and criminally negligent homicide in Neely’s death.

The trial is expected to last four to six weeks, according to Judge Max Wiley.

ABC News contributed to this report.

———-

* Receive news from eyewitnesses

* More New York City News

* Send us a news tip

* Download the abc7NY app to receive breaking news alerts

* Follow us on YouTube

Submit a tip or story idea to Eyewitness News

Do you have a breaking news tip or an idea for a story we should cover? Send it to Eyewitness News using the form below. If you attach a video or photo, Terms of use apply.