This story has been updated.

After three days of deliberation, the jury in the trial of Daniel Penny reported Friday to the judge that they were unable to reach a verdict in the first count of manslaughter in the second degree, and prosecutors decided to drop the charge.

Penny, a 26-year-old Marine veteran, was arrested after he got into an altercation with a man named Jordan Neely, who was making death threats against passengers on a subway train in New York City. Videos showed Penny subduing the man with a chokehold, which led to Neely's death. Penny was charged with manslaughter by Manhattan District Attorney Alvin Bragg.

On Friday the prosecutors responded to the jury development by telling the judge they could drop the first count in order to continue with the case. The judge said that he was apprehensive about continuing the case against Penny and went to recess to consider the issue.

Once he returned, the judge agreed to drop the first count and continue the case with a second count. The second count is criminally negligent homicide, which carries a lesser punishment upon conviction.

Several witnesses on the subway train have defended Penny and called him a hero for his actions, while some activists have accused him of racism because Neely was a black man.

This is a developing story, and additional information has been added.

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