People v. Borukhova

• Decision Date: 25 October 2011
• Citation: 2011 N.Y. Slip Op. 07646,89 A.D.3d 194,931 N.Y.S.2d 349
• Parties: The PEOPLE, etc., respondent,v.Mazoltuv BORUKHOVA, appellant.
• Court: New York Supreme Court — Appellate Division

89 A.D.3d 194

931 N.Y.S.2d 349

2011 N.Y. Slip Op. 07646

The PEOPLE, etc., respondent,

v.Mazoltuv BORUKHOVA, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 25, 2011.

Dershowitz, Eiger & Adelson, P.C., New York, N.Y. (Nathan Z. Dershowitz, Amy Adelson, Victoria B. Eiger, Daniela Klare Elliot, and Alan M. Dershowitz, Cambridge, Massachusetts, pro hac vice, of counsel), for appellant.Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Donna Aldea of counsel), for respondent.WILLIAM F. MASTRO, J.P., MARK C. DILLON, RANDALL T. ENG, and SANDRA L. SGROI, JJ.ENG, J.

On the morning of October 28, 2007, Daniel Malakov, a 34–year–old dentist, left his busy office to take his young daughter Michelle to a nearby park where he had agreed to bring the child for a visit with her mother, the defendant Mazoltuv Borukhova. As Malakov was waiting for the defendant to arrive, he was shot to death in front of four-year-old Michelle by a man wielding a gun equipped with a makeshift silencer fashioned out of a bleach bottle and duct tape. The codefendant Mikhail Mallayev's fingerprints were found on the silencer, and an eyewitness identified Mallayev as the shooter. At the time of the shooting, Malakov and the defendant were in the midst of a bitter divorce action, and Malakov was murdered just three weeks after the justice presiding over that action issued an order unexpectedly taking temporary custody of Michelle away from the defendant and awarding temporary custody to Malakov. Following an investigation, the defendant was arrested and charged, inter alia, with murder in the first degree, on the theory that she had hired Mallayev to kill her husband.

At the conclusion of a lengthy jury trial held in the winter of 2009, the defendant was convicted of murder in the first degree and conspiracy in the second degree. She now appeals, raising numerous challenges to her conviction, including a claim that statements she made to the police in the hours after her husband's death should have been suppressed because she was not given Miranda warnings ( see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), and that some of the statements were obtained in violation of her right to counsel. The defendant also assigns error to a number of the trial court's evidentiary rulings, which, among other things, allowed the prosecution to introduce testimony that one of her sisters made a threat against Malakov's life three days before his death. We conclude that while certain statements made by the defendant should have been suppressed by the hearing court, and the testimony regarding the threat made by the defendant's sister should not have been admitted into evidence at trial, these errors were harmless beyond a reasonable doubt, and the defendant was not deprived of her right to a fair trial.

The defendant Mazoltuv Borukhova and the victim, her estranged husband Daniel Malakov, were both born in Uzbekistan and emigrated to the United States as young adults. In the United States, Malakov attended dental school at New York University, and an orthodontic program at Columbia University. After completing his education, he opened a dental practice specializing in orthodontics in Forest Hills, Queens. The defendant received a degree in general medicine and surgery from a medical school in the former Soviet Union, thereafter successfully passed her medical boards in the United States, and completed a residency at the Brooklyn Hospital Center. The couple met in the fall of 2001, and married after only a brief courtship. Their daughter Michelle was born in February 2003. The defendant and Malakov first separated in November 2003, but reconciled about a year later. The reconciliation was short-lived, however, and the couple separated again in April 2005. Following the 2005 separation, Malakov commenced an action for a divorce against the defendant, which proved so acrimonious that his father was later to describe it as “a completely unfriendly and uncivilized divorce.”

In or about June 2005, a lawyer was assigned to represent Michelle in the divorce action as the attorney for the child. Over the next two years, Malakov and the defendant were engaged in extensive litigation over custody and visitation issues. At an early stage in the divorce action, Malakov, the defendant, and the attorney for the child stipulated that the defendant would have temporary custody of Michelle, and Malakov would have supervised visitation. After monitoring the progress of Malakov's visits with Michelle through reports made by the supervising agency, and meeting with both parents and the child in his own office, in April 2007 the attorney for the child recommended to Supreme Court Justice Sidney Strauss that Malakov have unsupervised visitation with Michelle. The defendant contested the recommendation, and Malakov's visitation continued to be supervised throughout the spring and summer of 2007.

However, when the parties appeared in the Supreme Court on October 2, 2007, Justice Strauss sua sponte issued an order taking temporary custody of Michelle away from the defendant and awarding temporary custody to Malakov. In an oral decision placed on the record in the presence of both parents, the Supreme Court described the defendant as overbearing and smothering, and was highly critical of what it perceived to be her efforts to prevent Michelle from developing a bond with her father. Among other things, Justice Strauss relied upon reports from the supervising agency to conclude that the defendant was sabotaging Malakov's efforts to engage Michelle by carrying the child into the visitation room, insisting upon being present during the visits, and “shutting the father out” by playing with Michelle and feeding her snacks. In accordance with the Supreme Court's order, temporary physical custody of Michelle was transferred to Malakov on Monday, October 22, 2007. The transfer of custody was filmed by a freelance television cameraman hired by the defendant to document the event. As shown in the videotape, the transfer of custody was upsetting for Michelle, as well as for her parents and the members of the Malakov and Borukhova families who witnessed it. The defendant carried Michelle the two blocks between her apartment and the home of Malakov's father, where the transfer took place, and the defendant continued to hold onto Michelle as Malakov attempted to take the crying child into his arms.

On Thursday, October 25, 2007, three days after the transfer of custody, both the defendant and her sister Sofya Borukhova (hereinafter Sofya) allegedly made threats against Malakov's life to members of his family. The first incident occurred in the morning, when Malakov's uncle Ezra Malakov (hereinafter Ezra), who lived near the defendant in Forest Hills, saw the defendant standing on the street talking on her phone. Noticing that the defendant seemed worried and anxious, Ezra asked her what was wrong, and she replied that Malakov had taken away her child. When Ezra attempted to reassure her by promising to help her get Michelle back, the defendant replied, “I don't need any help. His days are numbered. Everything is decided about them.” The second incident occurred that night, when Malakov's father Khaika Malakov (hereinafter Khaika) ran into Sofya on the street in the Forest Hills neighborhood where they both lived. According to Khaika, Sofya confronted him about the change in custody, and threatened that if his family did not refuse custody of Michelle and give her back, “[y]ou're going to lose your son on ... Sunday.”

Sunday, October 28, 2007, proved to be the last day of Daniel Malakov's life. That morning, he stopped by his father's house with Michelle on his way to his dental office, which was located about two blocks away. When Khaika asked his son what he was planning to do with Michelle during his office hours, Malakov said that he was “going to give the child to the mother today.” Khaika then questioned his son about where the defendant was going to pick up the child, and he replied that the defendant had asked him to bring Michelle to the park near his office.

The waiting room of Malakov's dental office was filled with patients when he arrived that day with Michelle at about 10:30 A.M. Among those present was Marisol Ortiz, who had brought her daughter to have her braces adjusted. Less then five minutes after his arrival, Malakov called in Ortiz's daughter, and quickly performed the adjustment. Ortiz then left the office, accompanied by both her daughter and her young nephew, and headed with the children toward her car, which was parked near the corner of 64th Road and Yellowstone Boulevard in Forest Hills. As she walked toward her car, Ortiz noticed that Malakov and the little girl who had arrived at his office with him were walking a few feet in front of her, heading toward a nearby park.

When Ortiz reached the park, she noticed a woman, dressed in dark clothing, walking toward her on 64th Road. Malakov and the little girl stopped by the gate in front of the park, while Ortiz continued on to her car with her daughter and nephew. One or two minutes later, when Ortiz was seated inside her car with the children, she heard what “[s]ounded like a muffled shot.” From a distance of about one or two car lengths away, she saw a man standing a few feet away from Malakov and pointing his right arm at him. According to Ortiz, the man was wearing a dark jacket and was about 5'9? or 5'10? tall, with a stocky build. Two more shots rang out, and Ortiz saw Malakov fall to the ground. Ortiz noticed that the little girl who had been with Malakov was now with a woman, who may have been the same woman she had seen walking toward her earlier. After the shooting, the woman cradled the little girl, and calmly walked her into the park, while the shooter jogged away from the park, stopping once to pick up something off the...