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(1). The title of the action is as set forth in the caption. There has been no change in the parties since the commencement of this action.

(2). This appeal is taken from the Appellate Division of the Supreme Court, Fourth Department.

(3). The Notice of Appeal to this Court was served on 20 May 1998 and filed on 20 May 1998.

(4). The original Judgments appealed from were serviced by U.S. Mail from the Appellate Division , dated April 29, 1998, and the Judgment was entered on April 29, 1998.

(5). The name and address of the attorney for the Plaintiff-Respondent is:

Ms. Maureen Walsh, Esq.
472 S. Salina Street, Suite 602
Syracuse, NY 13202-2480

(6). Appended to this statement are copies of the following papers:

(Exhibit A). Dated Notice of Appeal.

(Exhibit A). Judgment Appealed from.

(Exhibit B). Other orders brought up for review.

(Exhibit C). Memorandum from Appellate Division

(Exhibit D). Judgment of Trial Court.

(Exhibit E). Findings of Trial Court.

(7). This Court has jurisdiction to entertain the appeal and to review the questions raised since they involved the construction of the Constitution of the United States.

Justices, I have been forced to pursue my defense "pro se". I have spent a great deal of time reviewing procedures to insure these documents facilitate a rapid review on your part. I will speak in "plain english" in these brief paragraphs to communicate what I feel is the essence of this Appeal, and why it fall as a matter of "right" to the Court of Appeals.

I believe the record will show that I am a good person, a good spouse, and most of all, a good parent. It will show unambiguous evidence of my community involvement, and close relationship with my child. If I wasn't watching this happen with my own two eyes, I would not believe it possible. Especially the trauma our son Domenic has been put through.

As I went through the process you will follow I found myself stripped of dignity, reputation, property, and most of all, my relationship with Domenic. I watched experts/professionals with a great deal of experience relying more on "intuition" than "evidence". Professionals who staked out early positions, and then just did not move.

I saw a frightening lack of regard for "due process" (as required by the Fifth Amendment), it appeared we were marching toward a predetermined goal. There was no doubt how Judge Major felt when we met in chambers right before Trial began. I certainly felt that as a "man", I did not get "equal protection".

Justices, as you well know, you control the ball in these matrimonial affairs. The attorneys have no recourse to a Jury, and so, at the cost of all else, must stay in your good graces. It is a frightening amount of power, and I think it is one that our Constitution places a check upon by the use of a Jury. The CPLR of New York denies it's citizens that right (one that I feel is "preserved" to our citizens by the Ninth/Seventh and Fourteenth Amendments.

Given the evolution of Matrimonial Law since the time of the founding fathers, I believe it is time we realize that a parent has a right to be with their child (and same for the child). Again this is a right preserved to the people. If a party wishes to challenge that, they must convince a Jury beyond a reasonable doubt. While this may appear "revolutionary", I feel it's time may have come. The need to convince a Jury would reduce the horrendous amount of groundless allegations that get made. And it also recognizes the equality of both sexes.

To help your understanding of this case I have included all the Appellate Briefs filed in this matter as separate attachments. They contain extensive references/excerpts from the record, and should give you a "flavor" for the entire proceeding.

(7a) Constitutional References

1. Fifth Amendment - . . . nor be deprived of life, liberty, or property, without due process of law . . .
2. Seventh Amendment - In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . .
3. Ninth Amendment - The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. . . Declaration of Independence - We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.
4. Fourteenth Amendment - . . . No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. . .

(7b) Point Headings

1. Was the Defendant unfairly denied funds so that he could secure representation of Counsel, and did he not have a Constitutional right to Council in a proceeding which could separate him from his child?
   ANSWER: Trial Court denied requests for Counsel on numerous occasions.

1. Was the Defendant improperly denied his Constitutional right to a Trial by Jury, not only on the issues of grounds, but also on the issues of Custody and Property Distribution?

ANSWER: Trial Court denied request as part of same motion, 4/15/97.

1. Should the Defendant's objections regarding Dr. Hoenig's testimony, with regards to hearsay, identified expert, and the introduction of her report into evidence, been sustained?
   ANSWER: During trial, objections of Defendant were overruled by the Court.
   
2. Were the Defendants Constitutional rights to "due process" and ability to confront an accuser violated. Should the Plaintiff have been allowed to enter the report of Dr. Lois Black, Court appointed psychologist, into evidence without her oral testimony and opportunity for cross examination.
   
   ANSWER: Trial Court overruled objection by Defendant.
3. Should the Note of Issue been vacated and the Defendant given more time to complete discovery and should the Plaintiff been compelled to sign release forms for counselors who had advised the couple?
   ANSWER: On a motion heard 4/15/97 and on 9/10/97, Trial Court found there had been time and no signature of forms was required.
   
4. Should a mistrial have been granted when the Defendant produced a letter from the Central New York Psychological Association reprimanding Dr. Hoenig for unprofessional conduct in this matter?
   ANSWER: Trial Court refused to sign Show Cause order dated 10/15/96.
   
5. Did the Law Guardian demonstrate a pattern of conduct consistent with unjustified bias against the Defendant and did his ability to introduce "facts" after conclusion of trial, not subject to cross examination violate the Defendant's Constitutional rights to "due process" and ability to confront an accuser.
   ANSWER: In several motions, Trial Court refused to assign a new Law Guardian.
   Ignored objections to written report.
   
6. Did the evidence presented at trail support a finding by the Trial Court of "cruel & inhuman" treatment on the part of the Defendant, was there a fair distribution of property?
   ANSWER: Trial Court found preponderance of evidence to justify "cruel & inhuman" finding.
   
7. Was there enough evidence to support the Custodial finding of the Trial Court, were not the Defendant's and Child's Constitutional right's violated when a determination was made on just a "preponderance of the evidence" versus a standard of "beyond a reasonable doubt.", and without an option for a Jury.
   
   

Dated: 28 May 1998

John Murtari, pro se
45 East Oneida Street
Baldwinsville, NY 13027
(315) 638-7426To: