United States v. Fay

• Decision Date: 25 November 1960
• Docket Number: No. 140,Docket 26225.,140
• Citation: 284 F.2d 426
• Parties: UNITED STATES of America ex rel. John SADOWY, Petitioner-Appellant, v. Edward M. FAY, Warden of Green Haven Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

284 F.2d 426 (1960)

UNITED STATES of America ex rel. John SADOWY, Petitioner-Appellant, v. Edward M. FAY, Warden of Green Haven Prison, Respondent-Appellee.

No. 140, Docket 26225.

United States Court of Appeals Second Circuit.

Argued November 4, 1960.

Decided November 25, 1960.

John Sadowy pro se for appellant.

Louis J. Lefkowitz, Atty. Gen., of the State of New York, for appellee. Paxton Blair, Sol. Gen., Albany, N. Y., Irving Galt, Asst. Sol. Gen., New York City, and George K. Bernstein, Asst. Atty. Gen., of counsel.

Before SWAN, CLARK and MEDINA, Circuit Judges.

SWAN, Circuit Judge.

In June 1954 appellant was convicted in the County Court, Queens County, New York, and was sentenced as a second felony offender to a term of imprisonment which he is still serving. On appeal the judgment was affirmed by the Appellate Division, People v. Mysholowsky and Sadowy, 1 A.D.2d 1036, 152 N. Y.S.2d 252. Leave to appeal to the Court of Appeals was denied by Judge Fuld, and certiorari was denied Sadowy v. People of State of New York, 352 U.S. 933, 77 S.Ct. 237, 1 L.Ed.2d 168. Appellant also made two unsuccessful applications for writs of error coram nobis. Appeals taken in these two proceedings were dismissed by the Appellate Division for failure to perfect the appeal.

The present petition for a writ of habeas corpus was filed in March 1960. Judge Cashin granted petitioner's application to proceed in forma pauperis but denied issuance of the writ with a memorandum opinion which states 189 F.Supp. 151:

"The only ground raised by the petitioner to support the contention that he is in custody in violation of the Constitution or laws of the United States, is that the trial court refused to allow into evidence at the trial testimony as to the result of `lie detector\' tests he had taken, which tests would tend to show the innocence of the petitioner".

Thereafter Judge Cashin issued a certificate of probable cause limited to the ground stated in the above quotation.

The alleged error of the trial court in excluding testimony of an expert as to the pathometer ("lie detector") tests taken by the defendant, was urged in his state court appeals and in his coram nobis proceedings. It is the only point argued in the present appeal. He relies particularly upon the decision of Judge Colden in Queens County Court who admitted such evidence. People v. Kenny, 167 Misc. 51, 3 N.Y.S.2d 348. This opinion was rendered on March 29, 1938. Subsequently, on November 29, 1938, the Court of Appeals held in People v. Forte, 279 N. Y. 204, 18 N.E.2d 31, 32, 119 A.L.R. 1198, reargument denied 279 N.Y. 788, 18 N.E.2d 870, that such evidence was properly excluded, the record there being "devoid of evidence tending to show a general scientific recognition that the pathometer possesses efficacy." Appellant contends that in his case, as well as in Kenny's, adequate proof of the efficacy of the pathometer was presented, and that the Kenny decision should have been followed rather than People v. Forte, although Dr. Burke, who administered the tests to appellant in evaluating the results, mentioned "certain irregularities" in appellant's responses.

It is not necessary for us to determine, as the defendant asks us to do, whether the Forte case should have been distinguished and the Kenny rule...