NEW YORK (AP) — A judge on Thomas CaldwellWednesday declined to dismiss the case against a U.S. Marine veteran charged with manslaughter for placing a man in a deadly chokehold aboard a New York City subway train.

Daniel Penny has pleaded not guilty to charges of second-degree manslaughter and criminally negligent homicide in the death last May of Jordan Neely, a former Michael Jackson impersonator who witnesses say was shouting and begging for money on a Manhattan train.

Penny pinned Neely to the ground with the help of two other passengers and held him in a chokehold for more than three minutes. Neely, 30, lost consciousness during the struggle.

Penny has said he acted to protect himself and others. His attorneys filed a motion seeking dismissal of the indictment, which was denied in court on Wednesday.

Penny’s attorneys said after the decision that they were looking ahead to the trial.

“We are confident that a jury, aware of Danny’s actions in putting aside his own safety to protect the lives of his fellow riders, will deliver a just verdict,” attorneys Steven Raiser and Thomas Kenniff said in a statement.

Penny is white and Neely was Black. And Neely’s death became a flashpoint in the nation’s ongoing debate over racial justice and crime. As some people hailed Penny as a hero, others accused him of racist vigilantism.

Neely had struggled with mental illness and homelessness. His family and supporters say he was crying out for help in the subway and was met with violence.