Tax testimony muddies insurance fraud trial of Kingston dentist Nunez
Defendant Gilberto Nunez, right, leans in to speak with his lawyer, Evan Lipton, on Tuesday in Ulster County Court. Tani Barricklo — Daily Freeman file By Patricia Doxsey, Daily Freeman
Posted: 10/20/16, 6:44 PM EDT
KINGSTON, NY. Jurors in Ulster County Court can expect to hear closing arguments Friday in the trial of a Kingston dentist charged with swindling his insurance company out of thousands of dollars.
But first, County Judge Donald A. Williams will have to decide whether jurors will be allowed to consider as part of their deliberations the Thursday testimony of William Negron, an accountant who prepared the tax returns for Gilberto Nunez.
Prosecutors claim Nunez defrauded his insurance company by claiming that, as a result of a fire at a building he owned at 381-385 Washington Ave. in Kingston, he lost $8,400 in rental income. Nunez, who was acquitted of murder in June in the death of his ex-lover’s husband, has been charged with insurance fraud, grand larceny and five counts of falsifying business records, all felonies, in the insurance case.
Negron was called to the witness stand Thursday by Orange County Senior Assistant District Attorney Maryellen Albanese, the special prosecutor in the case, in an effort to prove Nunez didn’t claim the rental income he contends he received for the Washington Avenue building, which was next to his dental office, in 2013 or 2014.
Nunez claimed he received $1,200 a month in rent from Matthew Topple to use the first floor of the building for office space and storage of his construction equipment.
On Wednesday, Topple testified he signed a lease for the space, but he said he was signing it as “a friend,” was unaware of its terms and never paid Nunez for the space. Topple, who also rented an apartment from Nunez in a separate building, also testified that he paid his rent in cash and often would barter with Nunez for reduced or free rent. He testified that he completed several major construction projects for Nunez during the roughly four years he rented from the dentist, and said that, during that time, paid cash for only about two years worth of rent.
On Thursday, Albanese painstakingly stepped Negron through tax returns, balance sheets and worksheets the accountant said he prepared for Nunez and his corporation, Godsent Properties LLC.
On one document, Negron highlighted three $875 rental payments for an apartment, $14,000 in rental income for Nunez’s dental office and $15,732 that Negron said were real estate taxes that were considered rent.
Another document indicated $5,400 in rental income from outside sources and $42,000 in rental income paid by Nunez to Godsent Properties.
But under cross-examination, Negron testified that while he was aware that Nunez and Topple had a barter arrangement for rental payments, only the cash rental payments were accounted for in Nunez’s tax returns.
When he conceded under questioning by defense attorney Evan Lipton that not including the value of the barter as income was a “mistake,” Williams immediately halted Negron’s testimony, cleared the courtroom, warned Negron that the defense was asking questions that could result in criminal charges against Negron and advised him of his constitutional rights against self-incrimination.
Later in the day, Negron returned to court with attorney Russell Schindler, who indicated he advised his client “to invoke his Fifth Amendment rights not to answer any questions.”
Unable to proceed with his cross-examination, Lipton asked that Williams strike all of Negron’s testimony from the record, saying his client was being denied the right to challenge documents in evidence.
While Williams declined Lipton’s request Thursday, the judge, clearly exasperated with the prosecution, chastised Albanese for not anticipating questions pertaining to handwritten notes written by her witness on documents she introduced into evidence.
“This issue has come in front of the this court for no legitimate reason that I have heard without any advance notice to the court,” Williams said to Albanese.
“I would certainly hope that the prosecution would look at its own exhibits,” the judge said, adding that “how [the defense’s line of questioning] cannot be anticipated is beyond any understanding of the court.”
Williams said he would rule on Lipton’s request Friday, after both sides had the chance to make arguments supporting their positions.
Nunez was paid $180,000 from Preferred Mutual for losses sustained in the February 2014 fire. Included in that amount is the $8,400 the prosecution claims Nunez received by falsely claiming rental income on vacant space.
Frank Emmerich, a special investigator for Preferred Mutual, testified under cross-examination Thursday that the insurance company didn’t question Nunez’s claim of lost rent and did not file the complaint alleging the dentist received the payment under false pretenses.
Nunez was acquitted in June of murdering his former lover’s husband, Thomas Kolman, in November 2011, but he 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.
Williams has said he will not sentence Nunez for the forged instrument convictions until after the insurance fraud trial, as well as an upcoming trial for 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.
The fraud trial is to reconvene at 9:30 a.m. Friday.