
    The People of the State of New York, Respondent, v Walter Neumann, Appellant.
    Argued November 17, 1980;
    decided December 22, 1980
    
      POINTS OF COUNSEL
    
      Roger Bennet Adler for appellant.
    I. The judgment must be reversed because defendant’s responses were literally true. (Brown v United States, 245 F2d 549; People v Hattemer, 4 AD2d 775, 4 NY2d 835; People v Schmidt, 221 App Div 77; United States v Tonelli, 577 F2d 194; United States v Abrams, 568 F2d 411; United States v Slawik, 548 F2d 75; United States v Wall, 371 F2d 398; People v Blumenthal, 55 AD2d 13; People v Rao, 53 AD2d 904; United States v Bonacorsa, 528 F2d 1218.) II. The evidence is legally insufficient to sustain the jury’s verdict. (People v Tyler, 62 AD2d 136, 46 NY2d 251; People v Lombardozzi, 35 AD2d 528, 30 NY2d 677; People v Samuels, 284 NY 410; Bronston v United States, 409 US 352; People v Rinaldi, 34 NY2d 843; People v Gleason, 285 App Div 278; People v Fellman, 35 NY2d 158.) III. The Department of Investigation proceeding was improperly utilized as a perjury trap. Accordingly, the indictment constitutes abuse of process and a deprivation of due process. (People v Tyler, 46 NY2d 251; United States v Mandujano, 425 US 564; United States v Doss, 545 F2d 548; United States v Cross, 170 F Supp 303; Brown v United States, 245 F2d 549; United States v Icardi, 140 F Supp 383; People v Monaghan, 55 AD2d 1056; Brown v United States, 245 F2d 549.) IV. Defendant’s responses to the questions posed by examiner Roche were not material to the Department of Investigation’s inquiry. Accordingly, the judgment should be modified to perjury in the third degree. (People v Samuels, 284 NY 410; United States v Birrell, 470 F2d 113; People v Perillo, 48 AD2d 862; People v Hattemer, 4 AD2d 775, 4 NY2d 835; People v Teal, 196 NY 372.) V. The failure of the trial court to allow expert testimony concerning the meaning of the term “firearm” was error. (Dougherty v Milliken, 163 NY 527; Clark v Iceland S. S. Co., 6 AD2d 544, 7 AD2d 837; People v Allweiss, 48 NY2d 40; Washington v Texas, 388 US 14; Webb v Texas, 409 US 95; People v Berry, 62 AD2d 1021; People v Cuevas, 67 AD2d 219.) VI. The posecutor’s"summation and his erroneous objection to defendant’s summation deprived defendant of a fair trial. (People v Carborano, 301 NY 39; People v Tassiello, 300 NY 425; People v Ashwal, 39 NY2d 105; People v Petrucelli, 44 AD2d 58; People v Reyes, 64 AD2d 657; People v Butler, 67 AD2d 950.)
    
      Robert M. Morgenthau, District Attorney (Joyce P. Adolfsen, Robert M. Pitler and Jerrold Tannenbaum of counsel), for respondent.
    I. Defendant’s guilt was proved beyond a reasonable doubt. (People v Stanard, 42 NY2d 74, 434 US 986; Wood v People, 59 NY 117; People v Schmidt, 221 App Div 77; United States v Bonacorsa, 528 F2d 1218, 426 US 935; United States v Jones, 374 F2d 414, 392 US 299; Meyers v United States, 171 F2d 800, 336 US 912.) II. The investigation had the legitimate, substantive, and good faith goals of ascertaining whether the Prospect Park Zoo was being run correctly and whether animals populating the zoo were being mistreated. The investigation was in no respect a “perjury trap” designed to trick defendant into making false statements. (People v Tyler, 46 NY2d 251; People v Pomerantz, 46 NY2d 240; People v Schenkman, 46 NY2d 232.) III. The People provided sufficient corroboration of the falsity of defendant’s statements that he never discharged a firearm at pigeons in the zoo and that he never discharged a firearm within the geographical confines of the zoo. (People v Stanard, 42 NY2d 74; People v Sabella, 35 NY2d 158; People v Brown, 40 NY2d 381; People v Dixon, 231 NY 111.) IV. The court correctly denied defendant’s request to call an expert witness for the purpose of establishing that a pellet gun is really not a firearm. (Dougherty v Milliken, 163 NY 527; Swarts v Wilson Mfg. Co., 115 App Div 739.) V. Defendant was not prejudiced by one of the remarks in the prosecutor’s summation or by the prosecutor’s objecting to a remark made by defense counsel in summation. (People v Alicea, 37 NY2d 601; People v Ashwal, 39 NY2d 105; Williams v Booklyn El. R. R. Co., 126 NY 96; People v Ostin, 62 AD2d 1004; People v Gambino, 52 AD2d 957.)
   OPINION OF THE COURT

Meyer, J.

The issue to be determined in the trial of a witness for perjury is whether, measured by the meaning of the words used in the context of the questions asked and answers given, defendant’s testimony was intentionally false. When that context contains nothing to suggest that the word “firearm” was used in the limited sense defined in subdivision 3 of section 265.00 of the Penal Law, and shows that “firearm” was used interchangeably with “weapon” and to include a tranquilizer gun, it is a question for the jury whether proof that defendant fired a .22 caliber rifle and a pellet gun establishes the falsity of his testimony that he “never discharged a firearm.” The order of the Appellate Division affirming defendant’s perjury conviction should, therefore, be affirmed.

Defendant Neumann was the Acting Supervisor of the Prospect Park Zoo in Brooklyn, and the perjury charges against him stem from his testimony at a 1976 hearing of the New York City Department of Investigation concerning practices at the zoo. The Department of Investigation had received reports from the Parks Department that animals .had been abused and killed by zoo employees. One report alleged that a monkey had been scalded to death.

Before calling defendant to testify, Investigator Roche obtained sworn statements from defendant’s subordinates at the zoo. A menagerie keeper at the zoo, Devillo Holmes, swore that he and another zoo employee had accompanied defendant to the “elephant house” where all three men shot at pigeons with an air-powered pellet gun. Ejnar Johnson, a porter at the zoo, also reported that he had observed the defendant shooting at pigeons in the elephant house. Samuel Borrelli swore that he had seen defendant shoot a .22 caliber rifle at rats in the lion house and Devillo Holmes corroborated that fact.

Having secured these sworn statements, Investigator Roche summoned defendant for examination. Roche asked first whether there were wild birds within the zoo and defendant stated that there were, mainly starlings and pigeons. Asked if steps had been taken to drive the birds out, defendant answered that employees would either make loud noises or spray water at the birds. 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 firearmsl
“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 firearmsl
“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 in New York?
“A. I have a 12 gauge shotgun.
“Q. Have you ever registered any weapons with the City of New York?
“A. All my weapons are registered.
* * *
“Q. Are there any others [ , ] those that you haven’t mentioned?
“A. No.
“Q. You own a .221
“A. I do not.
“Q. Do you own a pellet gunl
“A. I do not.
“Q. Does the zoo own a pellet gunl
“A. Not to my knowledge.
* * *
“Q. And you say you’ve never discharged a weapon or firearm at any of the pigeons or birds at the zoo?
“A. Correct.
“Q. Have you ever seen anybody do that?
“A. No.” (Emphasis supplied.)

Investigator Roche then led the discussion to other topics, such as defendant’s relationship with his subordinates and the treatment of animals at the zoo. However, he returned to the subject of whether defendant had discharged a firearm at pigeons or within the confines of the zoo. The inquiry proceeded as follows:

“Q. I’d like to go back to one other area we discussed and that is the pigeons. Have you ever, at any time, discharged" a firearm at any of the pigeons?
“A. No.
“Q. Has any employees of the zoo?
“A. Not to my knowledge.
“Q. Did you ever discharge a firearm anywhere within the geographical confines of the zoo?
“A. No.
“Q. Are you certain of that?
“A. I don’t ever recall doing it. Unless — well, the tranquilizer gunl
“Q. Other than the tranquilizer gun?
“A. No.
“Q. And you’re absolutely certain you never discharged a firearm in the Elephant House at the-pigeons?
“A. Certain.
“Q. Have you owned a .22 in the last year?
“A. No.
“Q. Have you used a .22 in the last year?
“A. I spend a great deal of time in Pennsylvania where I use a great many firearms and I probably have.
* * *
“Q. Have you used a pellet gun in the last year?
“A. I don’t recall using one in the last — many many years before that.
, * * *
“Q. Have you never seen any dead pigeons in the zoo killed by bullets?
“A. Not that I know.” (Emphasis supplied.)

When the inquiry ended, Roche expressed his belief that defendant had not testified truthfully and reminded him of the penalty for giving false testimony. Roche also in- - formed defendant that he could then recant his testimony without penalty, but defendant did not accept the offer.

The indictment contains two counts. The first charges that defendant “swore falsely that he never discharged a firearm at any of the pigeons or birds at the zoo”, and the second accuses defendant of having sworn “falsely that he never discharged a firearm within the geographical confines of the zoo.” Holmes, Johnson and Borrelli having testified at trial concerning defendant’s shooting an air-powered pellet gun at pigeons in the elephant house and firing a rifle at rats in the lion house, the Trial Judge submitted both counts to the jury under instruction that they must determine what defendant meant when he denied discharging a firearm. Defendant was convicted of both counts of perjury and the Appellate Division, by a divided court, affirmed.

Defendant presents a number of arguments for reversal, only one of which, the standard by which falsity is to be determined, requires discussion. Defendant urges that his responses were literally true, becáuse the Penal Law definition of “firearm” as “any pistol, revolver, sawed-off shotgun or other firearm of a size which may be concealed upon the person” (§ 265.00, subd 3) does not include either a .22 rifle or a pellet gun. Alternatively, he insists that his conviction on the first count must be reversed because the dictionary definition of “firearm” (“a weapon from which a shot is discharged by gunpowder”, Webster’s Third New International Dictionary, at p 854) excludes an air-powered pellet gun. Though the discourse between a witness and his interrogator could make either or both definitions relevant, this is not such a case.

Nothing in the interchange between defendant and Roche suggested that either was speaking with reference to the Penal Law definition of “firearm”. More importantly, that definition itself contains its own refutation that it was intended to have any bearing on the determination of a perjury indictment such as the present one. This is because the definitions in section 265.00 of the Penal Law are preceded by the limiting words: “As used in this article and in article four hundred, the following terms shall mean and include”. Article 265 is concerned with possession, use and purchase of firearms and other dangerous weapons. Article 400 deals with the licensing of firearms and the destruction of weapons. Because neither is related in any way to a prosecution for perjury, section 265,00 by its express language precludes reliance upon its firearm definition in such a prosecution, except as a question or answer may have been specifically addressed to that definition.

More difficult is the question whether the first count must fall because the dictionary definition of “firearm” excludes an air-powered weapon. Defendant’s argument is largely based upon the decision of the United States Supreme Court in Bronston v United States (409 US 352). The Supreme Court did emphasize in that case that “The burden is on the questioner to pin the witness down to the specific object of the questioner’s inquiry” (at p 360), and that “Precise questioning is imperative as predicate for the offense of perjury” (at p 362). Those statements can no more be applied out of context, however, than can defendant’s words be assayed for falsity out of the context in which they were spoken.

In Bronston (at p 354) defendant had answered in the negative the question whether he had any bank accounts in Swiss banks. To the next question: “Have you ever?” his answer was: “The company had an account there for about six months, in Zurich.” The answer was literally true, but did not reveal that Bronston had himself maintained a Swiss bank account in the past although he did not have such an account at the time he was questioned. The Supreme Court held that the Federal perjury statute did not reach a nonresponsive answer which, so far as it went, was literally true. Reviewing the history of the offense of perjury, including the seminal Report on Perjury made in 1935 by our Law Revision Commission (NY Legis Doc, 1935, No. 60), the court concluded that the Congress did not intend its perjury statute to be construed so broadly. Of major concern as that history revealed was that witnesses not be discouraged from testifying by the fear that their responsibility for misunderstanding would be tested by jury hindsight and against the vague standard “of 'intent to mislead’ or ‘perjury by implication’ ” (id., at p 359). The safeguard, the court concluded, was to require that a perjury charge be based on actual rather than implied falsehood, leaving it to a “probing, prying, pressing” cross-examination rather than the threat of a perjury prosecution to ferret out the truth.

Bronston’s insistence upon thorough cross-examination was, thus, addressed to an answer literally true but unresponsive to the question because a half-truth. Here we deal with a witness who insists that he spoke truthfully because the word “firearm” had a different meaning for him than it did for his questioner. Whether words are spoken falsely, however, is not wholly a subjective matter. Unlike Humpty-Dumpty, the perjury defendant will not be heard to say “When I use a word it means just what I choose it to mean — neither more nor less.” Rather is the meaning to be gleaned from the context in which the word is used.

The English language contains many words with multiple meanings. As Mr. Justice Holmes so beautifully phrased it in Towne v Eisner (245 US 418, 425), “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” It will, therefore, ordinarily be for the jury, when a perjury defendant claims that his answers to questions asked were truthful because he ascribed a particular meaning to a word, to determine from the context in which the word was used whether the claim is valid.

The conclusion reached is not new to perjury law. Thus, in Seymour v United States (77 F2d 577, 584), the Sixth Circuit held it a jury question whether a perjury defendant thought the question put to him “meant what he said he understood it to mean,” and in Meyers v United States (171 F2d 800, cert den 336 US 912) and United States v Bonacorsa (528 F2d 1218, cert den 426 US 935), the District of Columbia Circuit and the Second Circuit Courts of Appeals have both concluded that “[a] defense to a charge of perjury may not be established by isolating a statement from context, giving it in this manner a meaning entirely different from that which it has when the testimony is considered as a whole” (528 F2d, at p 1221).

Viewed in the context in which defendant responded to questioning by Roche, no other conclusion can be reached than that there was evidence to take to the jury the question whether defendant testified falsely when he swore that he never discharged a firearm at pigeons or birds at the zoo or within the geographical confines of the zoo. The concept that defendant used the word “firearm” in its Penal Law sense is, if not negated, placed in serious doubt by the interchangeable use of “weapon” and “firearm” in the course of the questioning and by the references to a tranquilizer gun, to a pellet gun, and to a .22 caliber rifle, the more so as to the last since defendant himself used the word “firearm” when asked if he had used a .22 in the last year. The suggestion that defendant used the word “firearm” in its dictionary sense to mean a gunpowder, as distinct from an air-powered, weapon, while not as clearly so, also presented a question for the jury. Asked if he was certain that he had never discharged a firearm within the confines of the zoo, defendant responded, “I don’t ever recall doing it. Unless — well, the tranquilizer gun.” Defendant never questioned the use of the term “firearm” during his examination, or even after Investigator Roche had told him that he believed defendant had lied. Nor did he ever ask that the Trial Judge charge the jury as to the definition of firearm for which he now presses. There was ample evidence from which a jury could conclude that defendant used the term “firearm” in a sense broad enough to include both a .22 caliber rifle and an air-powered pellet gun and was not confused by the Penal Law or dictionary definition of the term. That being so, defendant’s conviction should be affirmed.

Gabrielli, J.

(dissenting in part). I dissent from the opinion of the majority insofar as it would uphold defendant’s conviction under the first count of the indictment, which charged that defendant “swore falsely that he never discharged a firearm at any of the pigeons or birds at the zoo”. It appears clear that a firearm is commonly understood to be a “weapon from which a shot is discharged by gunpowder”. Indeed, as the majority notes, this is the definition contained in Webster’s dictionary (Webster’s Third New International Dictionary, at p 854). A pellet gun, in contrast to a firearm, discharges a projectile by force of air rather than by gunpowder. Thus, since the People had proved only that defendant had fired a pellet gun at the pigeons, his denial of having discharged a firearm at these birds was factually, literally and legally truthful. Significantly, it is not and cannot be disputed that defendant was a gun fancier and an expert on the use of guns, which lends further support to the fact that he believed he was answering truthfully when he denied having discharged a “firearm” at pigeons.

Although it is clear that common words may have several meanings, and that the truthfulness of a statement must often be judged in the context in which it is given, the defendant’s response covered in the first count of the indictment was factually and literally true, and may not form the basis for a conviction for perjury. Before calling the defendant to testify at the 1976 hearing, the investigator secured sworn statements from defendant’s subordinates at the zoo that defendant had discharged a pellet gun at pigeons. However, when questioning the defendant, the investigator did not ask the defendant if he had discharged a pellet gun at pigeons, but instead asked him if he had discharged a firearm. In light of this background, when the defendant gave a literally truthful answer to the question, certainly the investigator could have pursued and indeed was obliged to pursue the inquiry further. A conviction for perjury cannot be based upon answers which are literally truthful and upon speculation concerning the defendant’s state of mind in view of the over-all context of a conversation in which other imprecise inquiries were made. The grave nature of a conviction for perjury demands nothing less than that the inquiry has been honed to ensure that the person questioned understands what he has been asked and to remove any reasonable doubt that his response is truthful.

Judges Jasen, Jones and Fuchsberg concur with Judge Meyer; Judge Gabrielli dissents in part and votes to modify in a separate opinion in which Chief Judge Cooke and Judge Wachtler concur.

Order affirmed.  