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Witness in Mazoltuv Borukhova Case 'Fabricated' Testimony, Court Docs Say

By Ewa Kern-Jedrychowska | March 21, 2013 7:07am
 Mazoltuv Borukhova's supporters believe she is innocent.
Mazoltuv Borukhova's supporters believe she is innocent.
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QUEENS — A Forest Hills doctor convicted of hiring a hit man to murder her estranged husband execution-style at a neighborhood playground in 2007 is asking for her conviction to be thrown out because the only eyewitness, an elementary school teacher, "likely fabricated" her account, according to court documents filed by her defense team this week.

Mazoltuv Borukhova, 38, was sentenced to life in prison in 2009, after being found guilty of hiring her cousin's husband, Mikhail Mallayev, to kill her husband, Daniel Malakov, for $20,000, in a case that stunned the tightly knit Bukharian community. Mallayev was also convicted and is serving a life sentence.

The star witness at the trial, Cheryl Springsteen, testified that she saw Mallayev fire two shots and then put his gun away before walking up the street, the Daily News reported at the time. She said that the look she got "was long enough for me to look at him head to toe and really take him in," the report said.

But Borukhova's lawyer, Nathan Dershowitz, says that the verdict — which was upheld in 2011 — deserves another look.

"The testimony of the sole eyewitness was likely fabricated and that exculpatory evidence of her fabrication was likely withheld, causing deep prejudice to defendant," Dershowitz wrote in the motion filed on Tuesday at Queens County Supreme Court. "The case against Borukhova was wholly circumstantial and the evidence against her was subject to a wholly innocent interpretation."

Malakov, who was a dentist, was shot execution-style in Forest Hills on Oct. 28, 2007, when he took his daughter Michelle to Annadale playground where they were supposed to meet Borukhova. Malakov had won custody of the child after a bitter divorce.

Prosecutors said Borukhova was so bitter about the custody battle that she took matters into her own hands, having her husband gunned down.

In the court documents, Dershowitz questioned Springsteen's testimony.

"The prosecution relied very heavily on her testimony," the documents state. But "her 'memory' of details about the shooter was fabricated," Dershowitz claims in court papers.

Springsteen, an elementary school teacher, testified that she had seen the attack when she and her then-fiancé were walking their dog. According to the News, she told the court that she heard the shot and then saw the profile of the shooter's face, later describing him to detectives as a Russian man between 48 and 52 years old.

The motion states that Stephen Mancusi, the NYPD sketch artist who met with Springsteen during the police investigation, has since written a book about his career that includes his involvement in the Borukhova case.

According to Mancusi, Springsteen initially told detectives that she did not see the gunman, but later an investigator "got her to cooperate and describe the shooter," the documents say.

Mancusi did not testify at the trial, according to the paperwork.

According to the motion, Springsteen testified that she had "about 60-90 seconds to observe the shooter" and that she saw "his right profile from about 30 to 40 feet away."

The witness picked Mallayev out at a lineup based on a frontal view, Dershowitz wrote in the documents, citing court records.

Springsteen, who has since moved away from the area, declined Wednesday to comment on the new motion.

Dershowitz claims that there were other errors as well.

The motion says that according to the police, Mallayev's fingerprints were found on a makeshift silencer found at the crime scene.

But the lawyer says that after the silencer was sent for testing, there was no DNA match for Mallayev.

"People now deny that any of those items were tested for DNA," the filing says. 

The Queens District Attorney's office declined comment Wednesday because it said it had not been served the motion yet.

A similar motion was filed in February 2012 by Mallayev's lawyer. His attorney, Tehilah Berman, said that the motion listed the same evidence — the lack of a DNA match and details from the NYPD sketch artist's book. The case is now pending, Berman said.

Meanwhile, Borukhova's supporters are hoping the public will help provide information that could overturn her conviction.

The doctor's supporters, represented by Soury Communications Inc., said in a statement that "with only weak circumstantial evidence tying her to the crime, Mazoltov Borukhova swears that she is innocent and that she took absolutely no part in the murder of her husband, Daniel Malakov."

In December, Borukhova's friends established a tip line and offered a $10,000 reward for information leading to her exoneration. Her friends have also hired former NYPD homicide detective Jay Salpeter.

“With the tip line you hope that new information will come in,” Salpeter said in December. On Wednesday, Salpeter said that he had "received tips and everything that comes in is investigated," but he declined further comment.

Salpeter said he had been successful with using tip lines in other high-profile cases, including the case of Marty Tankleff, who served 17 years in prison for the 1988 murder of his parents on Long Island before he was eventually exonerated, and in the “West Memphis Three” case, in which three teenagers were convicted of the 1993 murders of three boys in West Memphis, Ark. They were set free after the discovery of new evidence.

The number of the tip line is (718) 747-4662.