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STATEMENT

The parties were married on November 21, 1987 and have one son, Domenic, who was born on February 11, 1993. Respondent/Plaintiff commenced this divorce action in May 1995. After a non-jury trial in which defendant represented himself, New York State Supreme Court granted plaintiff a judgment of divorce (March 1997, Appendix B - page 37) on the ground of cruel and inhuman treatment; awarded plaintiff sole custody of the child with visitation to Petitioner/Defendant.

Substantial Federal Question Raised

The Petitioner/Defendant was granted "poor person" status in his appeal to the Appellate Division and specifically raised Constitutional issues at Trial and during Appeal (see Appendix K, Questions Raised, page 61), as allowed by State Law, regarding:

• Denial of counsel in a proceeding effecting the Custody of their child. See details in Appendix J, page 59.
• Denial of jury at trial (see Appendix I, page 57), and prohibition by the State CPLR & DLR (173) for a jury request on issues involving custody and equitable distribution in a divorce action.

Oral arguments were made, and the New York State Appellate Division unanimously affirmed the trial court judgment (April 29, 1998, Appendix D - page 43). A Motion for Rehearing at the Appellate Division was also denied (Appendix E - page 45).

Finality

Petitioner appealed to the state Court of Appeals on similar Constitutional issues (Jurisdictional Statement, Appendix G - page 51), and such review was denied by the Court on August 31, 1998 (Appendix H - page 56).

The Court of Appeals denied to take jurisdiction stating,

"that the order appealed from does not finally determine the action within the meaning of the Constitution."

The appeal was from a Judgment and Decree of Divorce: a home was sold, the marriage was dissolved, and Petitioner lost any custody in their child. Petitioner asks the Court to exercise its discretion in determining "practical" finality.

A. Summary

The Petitioner understands the Supreme Court of the United States is not necessarily concerned with correcting errors that may occur in a lower court. The brief facts discussed at this point are meant to lay the foundation for later arguments regarding the necessity of a jury when the custody of a child is at issue.

A review of the Trial Court Findings (Appendix A - page 26), would seem to show a clear case of "inhuman" conduct; however, when looking at the actual conduct of the trial and the testimony - some might conclude there was a bias against the Petitioner even before trial began. This "bias" was aggravated by the lack of Counsel for the Petitioner, and could not be later cured by a trial in which there was no jury present.

B. Witnesses and Evidence at Trial

Plaintiff called two witnesses:

1. Haseo Phillipson, her mother, to testify regarding financial transactions.
2. Dr. Alice Hoenig, Psychologist, to testify regarding her mental state and the cruelty to which she had been subjected by her husband. She had never met Mr. Murtari in person, but based her testimony on a description of him supplied by the plaintiff. Dr. Hoenig latter accepted a Letter of Reprimand from the Central New York Psychological Association for her conduct in this matter.

The Defendant subpoenaed and had 18 people ready to testify at Trial. The Trial Judge blocked the testimony of 5 based on redundancy or lack of relevancy, but 13 eye witnesses testified as follows (none exhibited "hostility" toward either party in their testimony):

None of the witnesses in entire list testify to observing an hostile or disruptive conduct between the couple. Minimal cross examination failed to support any negative conclusions.

1. Mrs. Amy Murtari (Married to Cousin of Defendant, friend of couple).
2. Mrs. Mary Murtari (Cousin of Defendant).
3. Mrs. Mary Palliotti (Cousin of Defendant).
4. Ms. Rose Weaver (Friend of couple).
5. Ms. Elaine Pendergast (Broker who spent considerable time with couple during purchases of two different homes).
   
   Following specifically testified to Defendants general demeanor and conduct.
6. Michael Sullivan (Director of Homeless shelter where defendant volunteers for past nine years).
7. Mr. Frank Forish (Deacon at parish, counselled defendant).
8. Ms. Betty Andrews (Nurse at Geriatric center where defendant volunteered for app. 6 years.
   

Following specifically testified to observing a warm relationship between between father & son.

1. Mrs. Cheryl Lidestri (Cousin of Defendant, friend of couple).
2. Mr. Jim Von Holtz (Neighbor)
3. Mr. Vincent Sneary (Worked with Defendant at his home business).
4. Ms. Peggy Timerson (Regular baby sitter for Domenic).
5. Ms. Sarah Roche (Director of daycare center where Domenic attended).
   

C. Appellate Decision in Error

Respectfully, Petitioner asks the Court to carefully review the Motion for Reargument (Appendix E - page 45).

• There was no other "overwhelming and convincing" evidence that affirmed the report of Dr. Black (who did not testify), and for who the Record on Appeal showed a pattern of obstruction and bias.
• The "failure to timely perfect an earlier appeal" was quite misleading. This was only addressed in oral argument, and had not been brought up by any of the parties in their briefs. The Petitioner had noticed an appeal prior to the start of the original trial - and had filed an order to show cause for a "stay" with the local Appellate Justice. This Judge had called the Petitioner at home, and explained the matter appeared untimely - that the Appellate Court could not "stay" a scheduled trial, and it might be best to continue with Trial, see what happens, and then appeal the judgment.