‘Case about greed,’ Nunez prose­cu­tor says

De­fense lawyer says in­surance pay­ment to den­tist was jus­ti­fied

Daily Freeman (Kingston, NY) - - FRONT PAGE - By Ariél Zangla azangla@free­manon­line.com ArielAtFree­man on Twit­ter

Pros­e­cu­tion wit­nesses tes­ti­fied Tues­day that a build­ing owned by Kingston den­tist Gil­berto Nunez was va­cant at the time of a Fe­bru­ary 2014 fire and that a con­trac­tor was not paying to store his tools there.

Nunez, who was ac­quit­ted in June of killing his exlover’s hus­band, is stand­ing trial in Ul­ster County Court for theft and in­surance fraud charges stem­ming from a claim he made on the build­ing he owned at 381-385 Wash­ing­ton Ave., next door to his den­tal of­fice. Prose­cu­tors al­lege Nunez filed a false claim for lost rental in­come on the prop­erty in or­der to steal $8,400 from his in­surance com­pany fol­low­ing the fire, while the de­fense says Nunez was en­ti­tled to the pay­ment and the amount in dis­pute is just a small frac­tion of his over­all claim.

“The case you are about to hear is a case about greed,” Orange County Se­nior As­sis­tant Dis­trict At­tor­ney Maryellen Al­banese, the spe­cial prose­cu­tor in the case, said in her open­ing state­ment Tues­day. “It is about a man who padded an in­surance claim.”

Al­banese said Nunez did not have rent com­ing to him from the prop­erty but that Pre­ferred Mu­tual In­surance Co. took him at his word when he made the claim for lost rental in­come. She said that claim for lost rent came from an agree­ment Nunez made with his friend and ten­ant above his den­tal prac­tice, Matthew Top­ple.

Nunez had Top­ple sign a lease stat­ing he stored his construction tools in the neigh­bor­ing build­ing, but no pay­ment was ever made, Al­banese said. She said Nunez

claimed to be re­ceiv­ing $1,200 a month from Top­ple but that Top­ple eas­ily could have rented a stor­age space for $100 to $200 a month if he needed a place for the tools he nor­mally kept in his van or on a job site.

De­fense at­tor­ney Evan Lip­ton said Top­ple never told Nunez he would not pay the rental amount for stor­ing his tools. He also said that in ad­di­tion to stor­ing tools, Top­ple used the build­ing as the base for his construction busi­ness.

Nunez and Top­ple were friends, and Top­ple would do construction work for Nunez in ex­change for rental pay­ments, though they never had a strict ac­count­ing of what was owed, Lip­ton said. He said the two men had an in­for­mal, trust­ing re­la­tion­ship.

“Nunez never in­tended to take any­thing he was not due un­der his in­surance,” the de­fense lawyer said. He said his client ex­pected to be paid ei­ther through cash or barter.

Both lawyers also spoke about Nunez’s in­surance on the build­ing, the pre­mium for which was higher while the struc­ture was va­cant.

Amongst the pros­e­cu­tion wit­nesses was Top­ple’s wife, Mariel Mel­nick-Top­ple. Un­der ques­tion­ing by Al­banese, Mel­nick-Top­ple spoke about how the cou­ple, engaged at the time, did not have a lot of money to spend and were try­ing to pay for their wed­ding.

“We weren’t bring­ing in much,” she said. “We were eat­ing peanut but­ter and

jelly for break­fast, lunch and din­ner.” She said Top­ple was work­ing a se­ries of odd jobs and she was not bring­ing in any money be­cause she was stu­dent teach­ing for her de­gree. Top­ple would barter his work for their rent, Mel­nick-Top­ple said.

To her knowl­edge, Mel­nick-Top­ple said, Top­ple never agreed to pay $1,200 a month to store his tools or sign a five-year lease to do so. She said they did not have that kind of money to spend.

Un­der ques­tion­ing by Lip­ton, Mel­nick-Top­ple ac­knowl­edged the cou­ple some­times spent more money than they had be­cause they had to pay for their wed­ding.

Troy Ash­down, a hous­ing in­spec­tor for the city of Kingston’s Build­ing and Safety Divi­sion, tes­ti­fied he in­spected the prop­erty in ques­tion on Feb. 18, 2014, two days be­fore the fire. He said he did not en­ter the ground floor of the twos­tory build­ing, which was com­mer­cially zoned, but in­stead in­spected the up­stairs apart­ment.

“It was va­cant,” Ash­down tes­ti­fied of the apart­ment. He said Nunez told him his son had lived there a few weeks prior.

Other pros­e­cu­tion wit­nesses tes­ti­fied Nunez told them he had win­ter­ized the build­ing, drain­ing the water pipes and turn­ing the heat down be­fore the fire oc­curred.

Kingston fire­fighter and fire in­ves­ti­ga­tor Todd Werba tes­ti­fied he was at the prop­erty the day of the fire and that there were some con­trac­tor tools sprawled on the ground of the first floor of the build­ing. Werba also said he had to move a tire and some lad­ders to get to the ori­gin of the fire.

Nunez has not been charged with start­ing the fire, but has been charged with in­surance fraud, grand lar­ceny and five counts of fal­si­fy­ing busi­ness records, all felonies. The cause of the fire was never de­ter­mined.

The trial is to re­sume at 9:30 a.m. Wed­nes­day.

On June 14, Nunez was ac­quit­ted of mur­der­ing his for­mer lover’s hus­band, Thomas Kol­man, in Novem­ber 2011. Nunez, how­ever, was found guilty of two felony counts of pos­ses­sion of a forged in­stru­ment for hav­ing a fake CIA iden­ti­fi­ca­tion card on his com­puter and for giv­ing his for­mer lover a let­ter pur­port­ing to be from a CIA agent.

Kol­man, 44, whose wife Linda was hav­ing an af­fair with Nunez, was found dead in his own ve­hi­cle at a shop­ping plaza in the town of Ul­ster. Prose­cu­tors al­leged Nunez poi­soned him with a den­tal seda­tive so he could have Mrs. Kol­man to him­self. The de­fense ar­gued Nunez and Thomas Kol­man were best friends and the den­tist had noth­ing to do with the death.

Ul­ster County Judge Don­ald A. Williams has said he will not sen­tence Nunez for the forged in­stru­ment con­vic­tions un­til af­ter the den­tist stands trial for the charges re­lated to the in­surance fraud, as well as for charges of per­jury, of­fer­ing a false in­stru­ment for fil­ing and mak­ing an ap­par­ently sworn false state­ment in con­nec­tion to al­legedly fil­ing false in­for­ma­tion while ap­ply­ing for a pis­tol per­mit. Jury se­lec­tion for that trial is ex­pected to be­gin next month.


Gil­berto Nunez, right, leans in to speak with his at­tor­ney, Evan Lip­ton, on Tues­day in Ul­ster County Court.

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