NEW YORK (AP) — The jurors in Daniel Penny’s fatal subway chokehold trial told the judge Friday morning that they can’t reach a unanimous verdict on the top charge of manslaughter.

The judge is considering whether to give them what’s known as an Allen charge — an instruction urging them to make every possible effort to reach a verdict.

Penny is facing charges of manslaughter and criminally negligent homicide in the death of Jordan Neely, who Penny held in a chokehold for about six minutes on a New York City subway in 2023.

Criminally negligent homicide carries punishments ranging from probation to up to four years in prison. The charge of manslaughter, a more severe offense, carried up to 15 years.

Criminally negligent homicide involves engaging in serious “blameworthy conduct” while not perceiving such a risk. Manslaughter, meanwhile, requires proving that a defendant recklessly caused another person’s death.

Penny’s lawyers say he was protecting himself and other subway riders from a volatile, mentally ill man who was making alarming remarks and gestures. Prosecutors say Penny reacted far too forcefully to someone he perceived as a peril, not a person.