Daniel Penny trial judge agrees to drop top manslaughter count after jury deadlocks twice

Manhattan prosecutors were forced to take the drastic step of tossing the top charge against Daniel Penny Friday after jurors twice said they couldn’t agree on a verdict in the highly watched subway chokehold case.

The note from jurors stating that they were deadlocked on the count of manslaughter in the second-degree sparked a dizzying and dramatic back-and-forth that ended with Manhattan Supreme Court Justice Maxwell Wiley agreeing to dismiss the rap.

“I’ll take a chance and grant the people’s application,” Wiley said, instructing the jury to return Monday and deliberate the charge of criminally negligent homicide, which carries a lighter sentence.

“Whether that makes any difference or not, I have no idea. But I’m going to direct you to focus your deliberations on count two,” he said with a touch of deadpan humor — before telling them: “Go home and think about something else.”