By Ivan Pereira
October 31, 2011 12 p.m. EST
Nearly four years to the day that Daniel Malakov was gunned down in front of his daughter at a Forest Hills playground, a state appellate court upheld the murder convictions of his estranged wife and her relative in his death.
The four-judge panel of the state Appellate Division of the Supreme Court, Second Judicial Department unanimously denied Mazoltuv Borukhova’s appeal for the 2009 first-degree murder and conspiracy convictions that were delivered to her and her distant uncle, Mikhail Mallayev, because the court said the evidence against them was “overwhelming.”
Borukhova, 37, who like Malakov is an Uzbek immigrant, hired O.J. Simpson attorney Alan Dershowitz to reverse the decision on the basis of various factors that took place during her seven-week trial, including the fact that the prosecution had an extra two days to prepare for their summations.
The appellate judges, however, found that the extra time for the prosecution did not make a difference in the jury’s decision.
“The record … amply demonstrates that despite the alleged lack of adequate preparation time, the defendant’s attorney … delivered a highly effective summation in which he highlighted the lack of direct evidence of the defendant’s involvement in the murder, and attempted to persuade the jury that there were reasonable, innocent explanations for the conduct which provided circumstantial evidence of her guilt,” they wrote in their Oct. 25 decision.
Malakov’s parents called the decision bittersweet.
“We are happy, but where is my son? Why did she do this to my son?” his mother, Malka Malakov, said.
On Oct. 28, 2007, Malakov, a Forest Hills orthodontist, was walking his then-4-year-old daughter Michelle to the Annadale Playground to meet Borukhova, who had just given up custody of the girl to her father.
The dentist was shot in the chest at point-blank range by Mallayev, 54, who fled the scene. Police arrested the shooter three weeks later at his home in suburban Atlanta after they matched his fingerprints on a makeshift silencer at the scene.
An eyewitness later identified him as the shooter in a lineup and during the trial.
Police arrested Borukhova three months after Mallayev was apprehended after they found that she made 91 phone calls to her distant uncle, who she denied knowing, and paid him nearly $20,000 in cash before the shooting.
Investigators said Borukhova wanted revenge against her estranged husband after the courts forced her to give up custody of Michelle.
The girl is currently living with her paternal uncle in Forest Hills and two weeks ago a Queens Family Court judge relinquished Borukhova’s parental rights.
“Borukhova will never see Michelle,” Malka Malakov said.
The prosecution’s closing arguments had been postponed from Friday March 6, 2009 to March 9, 2009 because Borukhova and Mallayev made arrangements with the judge to end the session before sundown, in accordance with their religious beliefs.
Since Borukhova and Mallayev’s attorneys took all day and afternoon delivering their summations, Queens Assistant District Attorney Brad Leventhal had no time to deliver his closing statement and had to wait till Monday. A day later, the jury convicted the pair and they were sentenced to life in prison without parole.
Queens District Attorney Richard Brown applauded the appellate court’s decision.
“The Appellate Division’s unanimous affirmance of the jury’s verdict and the trial court’s sentence of incarceration will hopefully bring a measure of closure to Dr. Malakov’s family,” he said in a statement that was released Thursday.
Dershowitz’s office did not return phone calls for comment, but told Reuters that the case is not over, as it is mulling appealing the case to a higher court.
“Obviously, we’re disappointed that the court found a number of significant errors and determined they were harmless,” Nathan Dershowitz, who co-defended Borukhova with his brother, told Reuters.
