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NEUMANN v. NEW YORK

November 24, 1981

Walter NEUMANN, Petitioner,
v.
PEOPLE OF the State of NEW YORK, Respondent



The opinion of the court was delivered by: BRIEANT

MEMORANDUM AND ORDER

Walter Neumann, a state prisoner, filed his petition for a writ of habeas corpus on July 22, 1981 pursuant to 28 U.S.C. ยง 2254. On September 23, 1981, the District Attorney of New York County filed an answer. The transcripts of the relevant state court proceedings were sent to the Court on November 10, 1981.

 After a jury trial, petitioner was convicted of two counts of perjury in the first degree. On April 22, 1977 petitioner was sentenced to two concurrent five year terms of probation. Petitioner's conviction was affirmed by the Appellate Division on May 8, 1979, People v. Neumann, 70 A.D.2d 524, 416 N.Y.S.2d 11 (1st Dept. 1979), and by the Court of Appeals on December 22, 1980, People v. Neumann, 51 N.Y.2d 658, 435 N.Y.S.2d 956, 417 N.E.2d 69 (1980).

 Petitioner raises three grounds in support of his application for a writ of habeas corpus. First, petitioner contends that the prosecution failed to prove that he was guilty beyond a reasonable doubt because his statements were literally true and therefore not perjurious. Second, petitioner contends that he was denied due process of law in that the investigation which lead to the perjured statement was a "perjury trap" designed to trick petitioner into making a false statement. Third, petitioner contends that the trial judge's instructions to the jury were improper insofar as they created a presumption that one intends the natural and probable consequences of his own acts.

 As to petitioner's first claim, a federal court will grant a writ of habeas corpus to a state prisoner challenging his conviction on the ground of insufficient evidence only if the court, after viewing the evidence adduced at trial in the light most favorable to the prosecution, concludes that no rational trier of fact could have found the petitioner guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). Applying this standard to the instant case, this Court holds, based on the entire trial record, that there was sufficient evidence at trial to permit a factfinder to conclude that the petitioner had the requisite intent to commit perjury and in fact committed perjury.

 The facts stated below were adduced at trial. In early 1976 the New York City Department of Investigation (the "Department") began an investigation of the City-owned Prospect Park Zoo in Brooklyn. The Department had received reports from the Parks Department which administers the zoo, that animals had been abused and killed by City employees. One report alleged that a monkey had been scalded to death. Several employees of the zoo were asked to appear at the office of the Department, where they were questioned under oath by Thomas H. Roche, Assistant Commissioner and Counsel to the Department.

 Before calling petitioner, who was the Acting Supervisor of the Zoo, to testify, Roche obtained sworn statements from several of petitioner's subordinates at the Zoo. A menagerie keeper at the Zoo, Devillo Holmes, had sworn that he and another Zoo employee had accompanied petitioner to the "elephant house" where all three men shot at pigeons with an air-powered pellet gun for sport. Ejnar Johnson, a porter at the Zoo, also reported that he had observed the petitioner shooting at pigeons in the elephant house. Samuel Borrelli swore that he had seen petitioner shoot a .22 caliber rifle at rats in the lion house. Devillo Holmes corroborated Borrelli.

 Having obtained these sworn statements, Roche called petitioner to testify. Petitioner was placed under oath by Roche and petitioner's testimony was taken down by a stenographer. Roche explained that neither Neumann's testimony nor evidence obtained as a result of that testimony could be used in a criminal proceeding against him, although it could be used in an administrative hearing. Roche also explained to Neumann twice that if he lied during his testimony or made deceptive statements he would be subject to criminal prosecution for perjury or contempt. Petitioner acknowledged that he understood these warnings. Petitioner was also informed of his right to have counsel at his testimony and that if he could not afford an attorney, one would be appointed for him. Petitioner stated that he did not want an attorney.

 During his testimony, petitioner was asked whether there were wild birds or animals within the Zoo and petitioner stated that there were a great number, mainly starlings and pigeons. When asked whether attempts were made to drive the birds out of the Zoo, petitioner stated that the only means used were that Zoo employees would make loud noises or shoot water at the birds through a hose. The following colloquy then ensued:

 
"Q Has there been any other means used to your knowledge?
 
A Not to my knowledge.
 
Q Have you ever used a firearm to disperse the pigeons?
 
A I have not.
 
Q Do you own any firearms?
 
A I do.
 
Q Could you tell me what kinds they are?
 
A 306, very powerful gun much too big for pigeons.
 
Q Do you own any other firearms?
 
A Well, I have some in my summer home in Maine, but they are not registered. Also I have a New York City pistol permit.
 
Q For what kinds of weapons?
 
A .357 Magnum.
 
Q Do you own any other weapons at home ...

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