Jury gets Nunez case; no ver­dict yet

Lawyers present clos­ing ar­gu­ments; panel to re­sume de­lib­er­a­tions Mon­day

Daily Freeman (Kingston, NY) - - FRONT PAGE - By Pa­tri­cia Doxsey pdoxsey@free­manon­line.com pat­ti­at­free­man on Twit­ter

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.

TA­NIA BARRICKLO — DAILY FREE­MAN FILE

Gil­berto Nunez, cen­ter, and de­fense at­tor­ney Evan Lip­ton, fore­ground, leave the Ul­ster County Court­house in Kingston ear­lier this week.

TANI BARRICKLO — DAILY FREE­MAN

Gil­berto Nunez, right, leans over to speak with his lawyer Evan Lip­ton dur­ing court Tues­day af­ter­noon.

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