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Notes -
Re any force, the amount used must be proportionate to the threat that is reasonably believed to exist. People v. Terk, 24 AD 3d 1038 (-NY: Appellate Div., 2005).
But the real issue in this case is probably not going to be the initiation of the use of force, but its nature and length. Penny is charged with second degree manslaughter, which requires recklessness, and in NY " A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation."
It obviously does not help him that one guy there warned that he might be killing Neely. And it does not help that two others began helping to restrain Neely; once that happens, arguably the threat posed by Neely is greatly reduced, and hence the need to use a chokehold is greatly reduced. Of course, I don't know how far into the event that happened. But the point is that the legal issues likely to be involved are quite different from the issues being discussed here.
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