A Kingston dentist accused in the 2011 poisoning death of his friend and romantic rival was acquitted of murder charges in Ulster County Court on Tuesday. But Dr. Gilberto Nunez still faces the prospect of years behind bars — the nine-man, three-woman jury also convicted him of two felonies in connection with a bizarre scheme to break up the marriage of Saugertiesians Linda Kolman, who he’d been involved with on the side, and Tom Kolman, the man he was accused of murdering.
The jury deliberated for about six hours before handing down the split verdict at 2 p.m. on Tuesday. For those who believed the 48-year-old dentist had just gotten away with murder, the verdict was a profound shock. On a bench in the back of the crowded courtroom, a Town of Ulster police detective who spearheaded the four-year effort to bring Nunez to trial sat with his head in his hands.
Linda Kolman, who testified for the prosecution about her affair with Nunez and her husband’s death, lashed out at her former lover as she was escorted from the courtroom by family members: “Lying piece of shit! Psychotic! Sociopath!”
Orange County Senior District Attorney MaryEllen Albanese, who took over the case after Ulster County DA Holley Carnright was disqualified by a conflict of interest shortly before Nunez’s 2015 indictment, left the courtroom visibly upset. Asked if she wanted to comment on the verdict, Albanese replied sternly, “I do not.” Outside the courthouse, a woman who described herself as a friend of the Kolmans but declined to give her name lamented the verdict.
“It’s heartbreaking that this man is getting away with murder,” she said. “It’s horrible.”
Nunez, meanwhile, remains free on $1 million bail as he awaits sentencing on the forgery charges and another trial on counts of perjury and insurance fraud. After the verdict he declined to comment as he left the courthouse red faced and teary-eyed accompanied by his wife (who he married sometime after Kolman’s death), his attorneys and a retinue of TV cameras.
The acquittal marked the end of a long road that began around 11 a.m. on Nov. 29, 2011 when Linda Kolman found her husband dead, slumped in the seat of his Honda Accord in the parking lot of a Town of Ulster shopping plaza where he regularly worked out at Planet Fitness. She made the discovery after Nunez called her to say that friends from Tom Kolman’s job had contacted him to ask why he hadn’t showed up. Nunez showed up at the plaza a short time later so distraught (or, as detectives would later imply, putting on an act) that he had to be restrained by cops as he lunged for the car where Kolman lay dead.
But police believe that by the time Nunez arrived at the plaza he knew Kolman was dead. Because hours earlier — around 5 a.m., prosecutors argued — he had driven to the plaza to meet with Kolman and poisoned him with a dose of the powerful sedative Midazolam. The drug is only sold to medical professionals, and only used in clinical settings. Cops believe Nunez, who kept the drug in an emergency kit, knew that even a relatively small dose of the sedative could be fatal, given Kolman’s severe sleep apnea. Prosecutors argued that Nunez dosed Kolman, probably with coffee spiked with the drug, then placed his seat in a reclining position to increase the odds that the muscles in his throat would give way due to sleep apnea and stop his breathing. Albanese argued that Nunez then undid his Kolman’s pants to make it look like he died following some kind of sexual encounter. Finally, prosecutors argued, Nunez took Kolman’s phone and erased 62 messages they exchanged immediately prior to the meeting.
At the time of Kolman’s death, Nunez was in the midst of an 11-month affair with Linda Kolman. Prosecutors argued that Nunez was “obsessed” with his friend’s wife and killed him because he feared Linda was about to break off the relationship and reconcile with her husband. Prosecutors also argued that, from almost the very start of the relationship, Nunez used anonymous text messages from a disposable “burner” phone to manipulate the couple into breaking up. At various points in the relationship, Linda Kolman received messages purporting to be from other women who told her her husband was having an affair. Other anonymous messages to Thomas Kolman informed him that his wife was “sleeping with the dentist.”
At one point, Nunez allegedly showed Linda a phony ID card identifying him as a “medical officer” for the Central Intelligence Agency and produced a document on fake CIA letterhead that he told her was an investigation into the text messages. In the summer of 2011, Nunez allegedly offered $1,000 to a friend to find an accomplice, pose as a CIA agent and meet with the Kolmans.
Over the course of 10 days of testimony from more than 50 witnesses, defense team Gerald Shargel and Evan Lipton sought to undermine every aspect of the prosecution’s case, including whether Kolman’s death was even a homicide. The defense produced its own pathologist, who disputed prosecutors’ contention that Kolman died from “acute Midazolam poisoning.” Instead, Dr. Zhongxue Hua argued that Kolman, who was overweight and suffered from hypertension and sleep apnea, likely died of heart disease.
They noted that pathologist Dr. Michael Sikirica had arrived at his theory of death by “acute Midazolam poisoning” only after 11 months and two exhumations of Kolman’s body to seek additional evidence.
In his summation, Lipton suggested that the pathologist acted under pressure from detectives who had already made up their minds that Kolman’s death was a murder and Nunez was the killer. “There is reasonable doubt all over this autopsy report,” Lipton told jurors.
Lipton and Shargel also worked to undermine a key prosecution argument — that Nunez was the only possible source of the Midazolam that set off alarm bells when it turned up in a toxicology report weeks after Kolman’s autopsy. Lipton reminded jurors that Tom and Linda Kolman both worked in the medical field; he as an in-home physical therapist and she as a secretary to the chief of medical services at HealthAlliance Hospital’s Broadway Campus. On cross examination, detectives conceded that they had never searched the Kolman house for drugs, instead relying on Linda Kolman to turn over her husband’s medication. Over prosecutors’ objections, the defense team introduced evidence that Tom Kolman maintained a post office box where he had testosterone, presumably ordered online after consulting the best testosterone booster reviews, delivered. They suggested that cops, who were focused on Nunez as early as February 2012 when they interrogated him and obtained search warrants for his apartment and office, never looked for other possible sources of the drug.
The defense team also argued that Nunez had no motive to kill Kolman. Linda Kolman testified that by mid-November of 2011, she had decided to break off the relationship with Nunez after the holidays. But the defense used affectionate text messages and emails and a card Linda gave Nunez to mark their 11-month anniversary on Nov. 16, 2011 to argue that no such plan existed.
The defense also pointed to Linda Kolman’s own testimony that her husband remained friends with and even grew closer to Nunez after learning of the affair in July as evidence that he had no plans to stand in the way of the relationship. Lipton suggested that Linda Kolman’s testimony was an effort to assuage her guilt over the affair.
Finally, the defense disputed evidence from a vehicle identification expert who testified that a vehicle seen pulling up next to Kolman’s car in the Planet Fitness parking lot the morning of his death was an exact match for Nunez’s 2010 Nissan Pathfinder. Nunez sold the SUV a week after Kolman’s death; detectives spent a year looking for it before tracking the vehicle to an Oriskany man and taking it to a local repair shop for inspection. The examination turned up a loose fog light that prosecutors argued was identical to that seen on a white SUV that appeared on a “gauntlet” of Ulster Avenue security cameras heading to the plaza and pulling up next to Kolman’s car in a secluded area of the parking lot.
In his summation, Lipton questioned vehicle identification expert Grant Fredrick’s ability to positively identify Nunez’s Pathfinder based on headlights glimpsed by security cameras at a distance.
“Headlight-spread analysis is not a science, it’s not even a thing,” Lipton told jurors. “You can’t match a car based on the spread of its headlights.”
Albanese argued to the jury that the disparate threads of circumstantial evidence pointed directly at Nunez as Kolman’s murderer. Nunez, she said, was the only possible source of the Midazolam. She mentioned the deleted texts and the video evidence of the white SUV in the parking lot and painted Nunez as a calculating deceiver who “impersonated” Thomas Kolman’s best friend while plotting to ruin his marriage.
Albanese asked jurors to recall testimony from one of Nunez’s tenants who said that just a few days before Kolman’s death, the dentist had expressed frustration that his girlfriend’s husband was having trouble “moving on” from the marriage.
“He told her, ‘I want this man out of my life, I want this man out of my girlfriend’s life,’” Albanese told jurors. “And a few days later, Thomas Kolman was out of his life. He was dead.”
Nunez left court a free man on Tuesday. But his conviction on two counts of felony first-degree criminal possession of a forged instrument and pending fraud and perjury charges could mean his freedom will be short lived. Last year, prior to his indictment in Kolman’s death, Nunez was indicted on a felony charge of third-degree grand larceny. That charge stems from allegations that he filed false insurance claims following a fire at a building adjacent to his dental practice at 387 Washington Ave. in Kingston. Nunez also faces a felony perjury charge based on allegations that he failed to disclose on a pistol permit application that he had been dishonorably discharged from the Marine Corps for desertion.
Nunez faces a maximum sentence of two and a half to seven years on the forgery charges. If he’s convicted on other counts, the sentences could be imposed consecutively sending him to prison for a decade or more.
On Tuesday, County Court Judge Don Williams said that he would wait on the disposition of the fraud and perjury charges before sentencing Nunez on the two forgery counts. Williams told the defense team to be prepared to bring their client before a jury again later this year.
“There will be no plea deal,” Williams told Shargel and Lipton. “This is going to trial.”
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