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Dershowitz argues appeal for Borukhova

Civil liberties lawyer Alan Dershowitz and a Queens prosecutor squared off before a panel of Appellate Court judges last week to argue over the conviction of Daniel Malakov’s murderous estranged wife.

The O.J. Simpson trial adviser contended that his client Mazoltuv Borukhova, 37, was not given a fair trial during the hearings that took place two years ago. Borukhova, who was not in the courtroom, and her distant cousin Mikhail Mallayev, 53, are serving life sentences for first-degree murder and conspiracy for the Oct. 28, 2007, shooting of Dr. Daniel Malakov at the Annadale Playground on 64th Road in Forest Hills.

Malakov, like his wife a Bukarian Jewish immigrant from Uzbekistan, was dropping off their then-4-year-old daughter, Michelle, at the playground when Mallayev shot him at point-blank range. Borukhova, a medical doctor, had lost custody of the girl 10 days prior to the shooting and paid Mallayev nearly $20,000 to kill her estranged husband and get the girl back.

Dershowitz argued before the four-judge panel Feb. 9 that the Queens district attorney’s case was based strongly on circumstantial evidence and Queens Supreme Court Judge Robert Hanophy had denied his client fair representation by allowing prosecutors two extra days to prepare for their summations by having the defense give arguments on Friday and the prosecution on Monday.

He contended that Hanophy rushed the proceedings because he had to go on vacation two weeks later.

“You don’t make decisions based on sipping piña coladas,” he said.

Queens Assistant District Attorney Donna Aldea countered his argument by reminding the judges that Borukhova’s attorney, Stephen Scaring, had ample time to prepare or ask for a change of date. During the seven-week trial, hearings were not held on Fridays because of the defendants’ Sabbath practices.

In the end, Hanophy offered both sides the chance to start their summations Friday and stop before sundown, and Borukhova ultimately agreed to the change, Aldea argued.

In addition, the prosecutor said Scaring could have readdressed the jury on Monday despite having finished his argument on Friday, but he chose not to. Hanophy also promised the jury that the trial would not last beyond seven weeks, according to the ADA.

Aldea contended that Scaring could not have offered any further argument for his client’s innocence.

“It was much better [not to readdress] because there was no overwhelming proof of [his case],” she argued.

Dershowitz maintained that the DA’s case against his client was also weak.

Although prosecutors had numerous pieces of evidence that proved Mallayev’s guilt, such as his fingerprints on a makeshift silencer and an eyewitness who identified him in court as the triggerman, the defense attorney said the DA did not have a smoking gun that linked Borukhova to the shooting.

“The only proof the people submit is the series of payments made in an irregular way,” Dershowitz said of Borukhova’s payments to Mallayev.

Aldea argued the defense forgot several other pieces of evidence that were introduced during the trial. Borukhova testified that she was 10 feet away from her husband at the time of the shooting but never heard the shots or saw the gunman, when people as far as two blocks away said they heard the gunfire.

The prosecutor also noted that Borukhova and Mallayev had 91 phone conversations in the month leading up to the murder, 20 of them in the week before the shooting.

The calls stopped the day after Malakov was murdered, but the shooter paid a visit to Borukhova’s 108th Street medical office to pick up a medical report, the same day he deposited the cash, according to Aldea.

“The evidence was absolutely overwhelming,” she said.

A representative for the state Appellate Court said there was no date set for when the judges will render their decision.

Reach reporter Ivan Pereira by e-mail at ipereira@cnglocal.com or by phone at 718-260-4546.

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