A judge presiding over the trial of Daniel Penny, a former Marine accused of choking a homeless man to death on a New York City subway, has dismissed a charge of second-degree manslaughter against him, after jurors failed to reach an agreement.

New York jurors still have one less severe charge of criminally negligent homicide to consider.

On the fourth day of deliberations, the 12 jurors sent two notes saying they were “unable to come to a unanimous vote” on the first count, which would be required for a conviction.

The judge sent them back to try again, but they still could not agree, prompting prosecutors to ask the judge to dismiss the manslaughter count.