Borukhova v. Warden
| Decision Date | 10 September 2015 |
| Docket Number | 14-CV-4738 (JG) |
| Parties | MAZOLTUV BORUKHOVA, Petitioner, v. WARDEN, Bedford Hills Correctional Facility, ATTORNEY GENERAL OF THE STATE OF NEW YORK, Respondents. |
| Court | U.S. District Court — Eastern District of New York |
FOR ONLINE PUBLICATION ONLY
APPEARANCES:
ANDREW CITRON
110 Wall Street, 11th Floor
New York, NY 10005
By: Andrew Citron
RICHARD A. BROWN
District Attorney, Queens County
125-01 Queens Boulevard
Kew Gardens, NY 11415
By: Johnnette Traill
Mazoltuv Borukhova petitions under 28 U.S.C. § 2254 for a writ of habeas corpus. Borukhova is presently incarcerated and serving a life sentence of imprisonment pursuant to New York state criminal convictions following trial for first-degree murder and second-degree conspiracy. She argues that she was denied federal constitutional rights before, during, and after trial. I heard oral argument on the motion on May 22, 2015. For the reasons given below, Borukhova's petition is denied.
On the morning of October 28, 2007, Daniel Malakov was shot to death in a park in Queens while he was bringing his four-year-old daughter Michelle for a visit with his wife (and the girl's mother), petitioner Mazoltuv Borukhova. Borukhova and Malakov were separated, and Malakov had recently gained temporary custody of Michelle. As discussed in detail below, the government's evidence at trial proved that Borukhova hired Mikhail Mallayev, the husband of Borukhova's first cousin, to kill Malakov. Following a six-week jury trial, Borukhova was found guilty of first-degree murder and second-degree conspiracy on March 10, 2009. On April 21, 2009, she was sentenced to life imprisonment without parole on the murder count and an indeterminate prison term of eight and one-third to twenty-five years on the conspiracy count. Traill Aff. ¶¶ 4-12, ECF No. 8; see also T. 3985-86, 4793-4830.1
Borukhova and Malakov are Bukharian Jews, which is a sect of the Orthodox Jewish community. Borukhova was born in Uzbekistan and was 35 years old at the time of trial. She earned a medical degree in the Soviet Union, and after she emigrated to the United States in 1997 she obtained her license to practice medicine in New York and became board-certified in 2006. Malakov was an orthodontist. Borukhova and Malakov met in 2001 and were married shortly thereafter. Their only child, Michelle, was born in 2003. They separated in November 2003, reconciled, then separated again in April 2005. Pet. ¶¶ 22-232; T. 3933-40, 1308-11.
Borukhova was tried jointly with Mallayev at a proceeding that began on January 26, 2009. The government presented 28 witnesses, including law enforcement officers,Malakov's family members, three eyewitnesses, and custodians of record. The defense case centered on Borukhova's own testimony and the testimony of seven other witnesses who supported Borukova's version of events. Mallayev did not testify in his own defense. On March 9, 2009, the case went to the jury, which found Borukhova and Mallayev guilty of first-degree murder and second-degree conspiracy the next day. Mallayev was also sentenced to life without parole. T. 4793-4830, 4890.
Borukhova and Malakov married in 2001, had Michelle in 2003, and separated less than a year later. Malakov filed for divorce in 2003. Borukhova had custody of Michelle following the separation, while Malakov had supervised visitation rights. T. 1312-17, 2318-23.
Michelle's law guardian, David Schnall, testified that Borukhova persistently sabotaged Malakov's relationship with Michelle. In April 2007, Schnall recommended that Malakov be awarded unsupervised visitation rights over Michelle, to which Borukhova objected. At the next Family Court date, October 3, 2007, Judge Sidney Strauss issued a temporary order taking custody of Michelle away from Borukhova and awarding it to Malakov. The court's decision detailed Borukhova's attempts to undermine Michelle's relationship with Malakov and Borukhova's "overbearing" attitude and "smothering" of Michelle. The court ordered the custody transfer to take place on October 22, 2007, six days before the murder. T. 2326-36, 2374-88, 2432-35.
Borukhova hired a public relations firm to film the transfer. The video was a "protracted, traumatic, and highly emotional display for the camera, during which petitioner repeatedly incited the child, woke her up when she fell asleep, and literally pulled on thescreaming four-year-old's legs while [Malakov] was holding her." Resp. Br. at 19, ECF No. 8, Feb. 11, 2015.
The prosecution offered testimony from three eyewitnesses to the crime. The first was Marisole Ortiz, whose daughter was Malakov's first patient on the morning of the murder. Ortiz testified that she was surprised to see Malakov and Michelle leave the office after her appointment and walk towards the park on Yellowstone Boulevard at 64th Road. As she was getting into her car, Ortiz noticed a woman wearing dark clothing walking towards Malakov and Michelle. T. 1401-05, 1424-26.
Two other eyewitnesses, Cheryl Springsteen and Natalie Tabois, testified they saw a dark-clothed woman standing with a girl in the park. Springsteen and Tabois were both near the park walking with their dogs. Springsteen was also with her boyfriend. Springsteen and Tabois described the woman as having short, curly, reddish hair. Tabois testified that while the girl stood with the dark-clothed woman, Malakov appeared to be waiting for something a few feet away from them. T. 1514-15, 1651-53, 1521-23.
All three eyewitnesses heard a loud bang that sounded like a muffled gunshot, then two more shots. Tabois said there was only a slight pause after the first shot. The witnesses saw the shooter standing in front of the victim, and Ortiz and Springsteen testified they saw the shooter holding a gun and watched him fire the last two shots. Tabois said she saw the shooter put something in his jacket after she heard the shots. All three saw Malakov fall to the ground and watched the shooter walk briskly away. T. 1411, 1417-22, 1514-15, 1519-20, 1524-30, 1638, 1659-65.
Ortiz and Springsteen testified that the woman and the girl were five to ten feet away from Malakov and facing him when the shooting happened. They testified that the womanwas calm after Malakov was shot and did not yell or try to help him. Ortiz said the woman stood still for a few seconds then pulled the girl toward her and walked into the park. T. 1426-27, 1667-68.
The witnesses described the shooter as a white, stocky man in a dark jacket. Ortiz said the man was about five feet nine or ten inches tall. Neither Ortiz nor Tabois could see the shooter's face. Tabois saw the shooter from behind and said he wore a small, black hat that looked like a yarmulke. Springsteen saw the shooter's face and she later identified Mallayev as the shooter in a lineup and at trial. She was the only witness to identify Mallayev. After the shooting, Springsteen told her boyfriend to call 911. Tabois ran to her apartment to get her cell phone to call 911. Ortiz ran back to Malakov's office to get help. When Ortiz got back to the park, she said no one was administering CPR to Malakov. T. 1422-23, 1428-30, 1524-33, 1638, 1660-65, 1669-70.
The eyewitnesses testified that after the shooting, they saw a woman approach the scene and began to run towards the victim when she saw him on the ground. Ortiz knew Malakov from the neighborhood but Tabois did not know him. At trial, Springsteen and Tabois identified Borukhova as the woman who approached Malakov after the shooting. They identified Sofya Borukhova ("Sofya"), Mazoltuv Borukhova's sister, in a photo array as the woman with red, curly hair who they saw before the shooting. T. 1399, 1522, 1535-36, 1542-43, 1672-74, 1678.
Police Officer Thomas Danielle arrived between 10:45 and 10:50 a.m. after he heard gunshots from several blocks away. When Danielle arrived, he saw a group of people standing around Malakov, but no one was administering CPR. Danielle testified that Borukhova walked around the corner and began to run as she saw Malakov on the ground. Borukhova didnot identify herself as Malakov's wife, but she said she was a doctor and told Danielle to call 911. She began to do CPR along with Danielle but then stopped when she learned the ambulance was approaching. EMT worker Susana Toriz testified that she started administering CPR when she got to the scene and Borukhova offered to help intubate Malakov. Toriz testified that Borukhova appeared to be calm when she offered to help. Malakov was taken to the hospital and died shortly after. T. 1089-1102, 1148-52, 1175-85.
Police Officer Jennifer Irving testified that after Malakov was taken to the hospital, Borukhova complained of chest pain and was taken to North Shore Hospital. Irving rode with Borukhova in the ambulance and said she appeared to be calm. Detective Ismet Hoxha interviewed Borukhova briefly at the hospital. Borukhova was calm and said she met Malakov on the street to pick up Michelle, then as she bent down to hug Michelle, she saw Malakov on the ground bleeding from the chest. Borukhova told Hoxha that she called 911 immediately and that she started to perform CPR on her husband, but she did not see anyone or hear any gunshots. Other evidence showed that Borukhova called 911 five minutes after the shooting but she did not provide any information to the operator, then she called again after others were present at the scene. Hoxha testified that Borukhova told him that she and Malakov were separated, that she was seeking a divorce, and that she had custody of Michelle at the time. Borukhova ended the interview because she said she was not feeling well, but she agreed that she would talk to Hoxha after being discharged. T. 3006-09, 3012, 3280, 3964, 4310-18.
...
To continue reading
Request your trial