A Divorce By Other Means
A dentist and a physician meet, get married, and have a child. Then they file for divorce. The divorce is a horror show: every week is a crisis; every month is a trip to court for petty disagreements about visitation, money, harassment…the usual; the parents hate each other. And so it goes.
One day, the dentist-father, is scheduled to drop the child off to the physician-mother at a park in Queens. The father is shot dead by a male gunman who is using a silencer made out of a bleach bottle and duct tape. The gunman is identified as the relative of the mother who lived in Georgia. The gunman and the wife are charged with murder.
This week’s case is interesting for a number of reasons:
- It raises the issue as to whether you are actually represented by a lawyer the moment the lawyer contacts the police department, even if you don’t know the lawyer and you don’t know that your family contacted the lawyer.
- The case discusses a situation when hearsay IS allowed – that is, when the statement explains a person’s “state of mind.”
This is their trial.
- Daniel Malakov: a 34-year-old dentist
- Mazoltuv Borukhova: Dan’s wife
- Michelle: their 4-year-old daughter
- Mikhail Mallayev: married to Mazoltuv's cousin and lived in the State of Georgia.
- Cheryl Springsteen: an eyewitness
Backdrop – Divorce Proceeding:
Dan and Maz had been in the middle of a contentious divorce.
Dan and Maz appeared in the Supreme Court on October 2. Justice Strauss, without being asked by either Dan of Maz, issued an order taking temporary custody of Michelle away from the mother and awarding temporary custody to Dan, her dad.
In an oral decision placed on the record in the presence of both parents, the Supreme Court described the Maz 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.
Temporary physical custody of Michelle was transferred to Dan.
Testimony of Cheryl - The Eyewitness
Q: Please tell the jury what you observed.
A: I saw a man about 30 feet away from the park entrance. I heard what I thought was a firecracker and turned around toward the park. I then saw a stocky man, about five feet nine inches tall and wearing a dark jacket, standing in front of the entrance to the park with his right arm extended with a gun in his hands pointed towards someone I couldn’t see. But I was able to see the man's entire right profile.
Q: Is that man here in court today?
A: Yes. It is Mikhail, sitting there at that table. He shot the person. I watched as he fired two more shots and then placed the gun in either his waistband or jacket before walking briskly but calmly up 64th Road toward 102nd Street.
Q: What happened to the person who was shot?
A: As Mikhail walked away, the shooting victim took a step from the park onto the sidewalk and fell backwards to the ground.
Q: What did you do next?
A: I called 911 and I saw a woman, Maz, approach the scene from the opposite corner of 64th Road and Yellowstone Boulevard, ran toward the victim, and calmly began administering CPR.
Testimony of Mazoltuv Borukhova - Dan's Wife
Q: Tell the jury what happened on the day of…
A: Yes, It was Friday, October 26. I had arranged with my husband to see Michelle that coming Sunday, planning to call him Sunday morning to decide on a specific meeting time. After checking on some patients at North Shore Hospital on the morning of October 28, she spoke to her husband on the phone at about 10:45 a.m., and began walking on 64th Road to meet him and Michelle at his dental office. Before I reached the office, I saw my husband and Michelle crossing Yellowstone Boulevard and walking towards me. As they approached, Michelle ran to me. I had picked Michelle up and swung her around a few times. Dan then joined in the swinging, holding Michelle's lower body as I continued to hold her upper body…I suddenly felt as if I could not hold Michelle anymore, and realized that Dan had let go of Michele. Dan ran into the middle of the road grabbing his chest, and I noticed blood on his hands.
Q: Did you hear gunshots?
A: No, I did not hear a gunshot or see anything suspicious, like someone shooting a gun or running away. I just grabbed Michelle and ran into the park, crying out for help before sitting down with Michelle on a swing.
Q: Did you do anything after that?
A: Well…yeah. I took out my phone and dialed 911 at 10:48 a.m., but I was too upset to get any words out. After hearing someone saying, "the dentist is shot . . . He's on the ground. He's bleeding," I left Michelle with a woman I recognized from prior visits to the park, and ran over to administer CPR to my husband.
Cross - Examination of Mazoltuv Borukhova - Dan's Wife:
Q: You were angry with your husband on the day of his shooting, weren’t you?
Q: I am going to read the Order of the Judge presiding over your divorce proceedings:
MAZ’s LAWYER: OBJECTION! That is rank, inadmissible hearsay.
PROSECUTOR: State of mind, Your Honor! It will be unnecessary for the jury to consider the truthfulness and accuracy of these statements in evaluating their likely effect on Maz's state of mind. The impact on Maz's state of mind is highly relevant circumstantial proof of her motive to have her husband killed. In fact, it supports the Prosecution's theory that Maz believed that she might lose permanent custody of Michelle, and that she hired Mallayev to kill her husband to secure Michelle's return.
JUDGE: The objection is OVERRULED. The statement goes to Maz’s state of mind and not whether Judge Strauss was truthful.
Q: Maz, isn’t it true that while you were at the precinct you told the detectives….
MAZ’s LAWYER: OBJECTION! Maz had a lawyer who was not present at the time of the questioning.
PROSECUTOR: That is not accurate, Your Honor. Shortly before Maz's arrival at the precinct, her sister contacted attorney Matthew Brissenden, and told him that Maz was being questioned by the police in connection with the shooting death of her husband which had occurred earlier that morning. Brissenden agreed to represent Maz and he called the 112th Precinct and told the person who answered the phone that he was Maz's counsel, that he wanted to speak to her, and that he did not want her to be questioned until he had an opportunity to speak to her. Before Maz was questioned by detectives, Sergeant Claudia Bartolomei was given a written message with Brissenden's name and telephone numbers on it, and was instructed to ask Maz whether she had retained him or knew him. Sergeant Bartolomei proceeded to the precinct lunchroom where Maz was sitting alone, and asked her whether she had an attorney. When Maz answered "no," Sergeant Bartolomei told her that an attorney had called saying that he represented her, and showed her the written message. Maz responded that she had not called an attorney, and didn't know the attorney who had called.
JUDGE: The objection is OVERRULED. Maz did not know she had an attorney and did not know the attorney
Testimony of Mikhail
Q: Sir, you're married to Mazol's cousin, correct?
Q: And you lived in the State of Georgia at the time of the shooting.
Q: Now, on the date of the shooting you were in Queens, were you not?
A: No. I was home in Georgia.
Q: I am showing you the records of your cell phone records indicating that you were in Queens on that day.
A: Oh, yes. I had to visit a friend in Brooklyn.
Q: And I am showing you your bank account records. These indicate a that you received $20,000 from Maz on the day of the shooting. Is that accurate?
A: If that’s what they indicate.
We the jury, find both defendant’s GUILTY of murder in the first degree and conspiracy in the second degree.
The trial court made a mistake on the issue as to whether Maz was represented by an attorney even though she was unaware of that.
In New York, when an attorney enters a case to represent the accused, the police may not question the accused about that matter regardless of whether the person is in police custody. An attorney "enters" a case by actually appearing or directly communicating with the police by telephone.
The issue of whether an attorney has entered a case is not dependent upon whether that attorney has been personally retained by the defendant, or has instead been retained by a member of the defendant's family.
HOWEVER, because of the overwhelming evidence in this case, the error was harmless.
The conviction was affirmed. Maz and Mikhail were both given life sentences.
Click HERE to read the full case.