Jury gets Nunez case; no verdict yet
Lawyers present closing arguments; panel to resume deliberations Monday
Jurors in the Gilberto Nunez theft and fraud trial deliberated for nearly three hours Friday without reaching a verdict.
At issue for the five-man, sevenwoman panel in Ulster County Court is whether Nunez, a Kingston dentist, intentionally defrauded the Preferred Mutual insurance company when he filed an $8,400 claim for lost rental income after a fire destroyed a building he owned at 381-385 Washington Ave., as the prosecution claims, or whether Nunez believed he was entitled to the insurance company payout.
“The criminal law isn’t about mistakes, it isn’t about gotcha, it isn’t about traps,” defense attorney Evan Lipton said in his closing arguments to jurors on Friday. “There must be intent to be a crime. Gilberto Nunez did not
commit a crime. He did not take anything he did not believe he was entitled to ... not one cent.”
Orange County Assistant District Attorney Maryellen Albanese, though, told jurors Nunez falsified documents and padded his insurance claim to get more money than he was entitled to.
“Is $8,400 a fraction of the money? Yes it is,” said Albanese, the special prosecutor in the case. “But it’s not nothing to sneeze at.”
Nunez was paid $180,000 for losses incurred as a result of a February 20, 2014, fire that destroyed the Washington Avenue building, next door to his dental office. Of that, $8,400 was for rent he claimed he no longer could collect due to the fire.
Nunez has been charged with one count of grand larceny, insurance fraud and five counts of falsifying business records, all felonies.
The jury is to resume deliberations Monday morning.
Much of the prosecution’s case rested on the testimony of Matthew Topple, a contractor and former tenant of Nunez’s.
Topple testified that he signed a lease to rent the first floor of the building and stored his construction equipment in the building, but that he never agreed to pay Nunez any money. Rather, he said, he signed the lease “as a friend” because Nunez told him the insurance premiums would be cheaper on an occupied building than a vacant one.
Topple said he had no idea that the lease called for him to pay $1,200 in rent, and that he never paid Nunez.
Lipton, in his closing arguments, called Topple’s credibility into question, saying he proved himself on the witness stand to be a
shady character who struck deals with law enforcement to get himself out of trouble and would say anything necessary to get what he wanted.
While Lipton conceded there were no rent receipts proving Topple paid Nunez, he said Topple paid Nunez in cash and barter, just as he testified he had for the apartment he rented from Nunez.
That the two men had a barter arrangement, Lipton said, was borne out by evidence introduced by the prosecution showing Nunez’s accountant, William Negron, made a notation on 2013 financial documents that stated, “Barter, Matt, building maintenance, rep. costs apt 387B $600, and 381 Washington $1,200 a month.”
“That proves arrangement long before the fire,” Lipton said.
Lipton also said Nunez easily could have satisfied the insurance company’s need to have the building occupied by using the space as storage for his dental office, and he said that if the case was about greed, he would have claimed the
$2,500 Nunez had originally told the insurance company he expected to get for the space.
Albanese said in her closing statement that Nunez told his insurance company in May 2013 that he had a tenant for the building — a month before Topple signed the lease and a week before insurance inspectors were coming to look a the building.
She said there was no reason for Topple to pay $1,200 a month for the space when his tools easily would have fit in a small storage shed.
“Matt Topple had no reason to say he never paid rent to Nunez, unless it was true,” Albanese said. “All he had to gain was the aggravation of being dragged into the court. He had no reason to make up the story.”
Albanese also asked jurors to consider a taped recording of Nunez on the phone with Central Hudson in which Nunez asked to have the electricity and gas in the building turned off because it was “vacant,” and she asked jurors whether they found it “strange” that Nunez was able to get a tenant within weeks of buying the building when former owner Win Morrison testified he had been unable to find a commercial tenant for the site.
On June 14, Nunez was acquitted of murder in the November 2011 death of Thomas Kolman, his ex-lover’s husband. He was however, 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.
Nunez also is facing 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 in that case is expected to begin next month.
Ulster County Judge Donald A. Williams has said he will not sentence Nunez on any of the convictions until all of Nunez’s cases have been resolved.
Gilberto Nunez, center, and defense attorney Evan Lipton, foreground, leave the Ulster County Courthouse in Kingston earlier this week.
Gilberto Nunez, right, leans over to speak with his lawyer Evan Lipton during court Tuesday afternoon.