Bierenbaum argues that his trial counsel was ineffective for failing to request a jury charge to the effect that the prosecution must prove beyond a reasonable doubt that the crime occurred within the state of New York. But he chokes her much harder than he'd done when she was only having a cigarette. If you are uninsured or underinsured, or need a referral to a doctor or dentist, call our Affordable Health Line at 585-328-7000. And when detectives grilled him about what he did on July 7, 1985, the day his wife disappeared, he never mentioned his two-hour solo flight in a Cessna over the Atlantic Ocean. We affirm. You watch as it literally squeeze[s] the life out of another human being. University of New England College of Osteopathic Medicine. ''I have no idea what you've done in the past, you have no idea what I've done,'' Mr. Hussey concluded last week, after the verdict, seated in a restaurant near Minot International Airport, which has one baggage carousel. I want to remind you that every individual has a right to an attorney and you can draw no negative inference from the fact that someone hires an attorney. When the prosecution gave notice during trial that it had provided copies of the videotapes to the defense, counsel stated I suspect we'll object. The trial judge responded And I suspect I'll allow it. Trial Tr. Doctor of Osteopathic (DO) The Appellate Division analyzed the reliability of the challenged statements under the rule for determining reliable hearsay set forth by the New York Court of Appeals in Nucci v. Proper, 744 N.E.2d 128 (N.Y.2001): Reliability is the sum of the circumstances surrounding the making of the statement that render the declarant worthy of belief. Id., 744 N.E.2d at 131 (citations, internal quotation marks and ellipses omitted). How close up you are with a person that you are choking Strangulation is up close and personal. Dr. Leigh McCullough, Katz's employer in the fall of 1983, noticed bruises on Katz's neck one day. While they have . The police searched for Katz between her apartment and Central Park and found no trace of her. See Bierenbaum v. Graham, No. When the trial court's attention was drawn to this error, it refused to order a mistrial, but offered an instruction, admonishing the jury that it could draw no negative inference from an individual's acting on advice of counsel. ''Murderer'' is the word Ms. Katz-Bierenbaum's sister, Alayne Katz, consistently used to describe him. Janet and the baby are fine. A state court's determination of a factual issue is presumed to be correct, and may only be rebutted by clear and convincing evidence. Think about him standing over Gail Katz as she feels and he watches the life ebbing from her body. On appeal to the Appellate Division, First Department, Bierenbaum presented, among other questions, the following: Whether Dr. Bierenbaum was denied a fair trial by the improper admission of widespread testimony recounting statements purportedly made by Ms. Bierenbaum, which did not satisfy any hearsay exception or the confrontation clause of the state and federal constitutions ? Similarly, in his letter seeking leave to appeal to the New York Court of Appeals, he argued that leave should be granted to review the admissibility of background evidence through hearsay declarations, whether in domestic violence cases or otherwise, and to consider whether admission of such evidence denies a defendant his state and federal rights of confrontation.. Consistently absent from any of his accounts of his activities on Sunday, July 7, 1985 was the fact that he rented an airplane in New Jersey that afternoon and went flying. On February 25, 2008, the district court denied the petition without conducting an evidentiary hearing. In fact, the police were not permitted to conduct a forensic search of the apartment. . Other Emergency Medicine Physicians Nearby, Emergency Medicine Physicians Nearby by Procedures, Emergency Medicine Physicians Nearby by Conditions, Fractures, Dislocations, Derangement, and Sprains, Psychological and Neuropsychological Tests, Excellus BCBS CNY Preferred Gold - Tier 1, BCBS MI Blue Care Network PCP Focus Network HMO, Capital District Physicians Health Plan PPO, Empire BCBS Blue Access Employer Sponsored, Empire BCBS Connection Employer-Sponsored, Excellus BCBS Individual Marketplace NYS QHP, MVP Health Plan Premier / Premier Plus - NY, NYS Provider & Health Excellus Blue Cross Blue Shield Essential Plan. Given that the videotapes were neither speculative nor lacking in foundation, counsel was not ineffective for failing to object to their admission on that basis. If you wanted to start a new life, free of reproach or inquiry, this remote prairie town of 35,500 might be the place. Only later would he learn what had happened. Dr. Robert Martin Biernbaum, DO is a health care provider primarily located in Rochester, NY, with other offices in Victor, NY and Columbus, OH ( and 2 other locations ). gofrom the doctor to the pharmacist,primary care physician to a specialist, or a radiology center to the emergency room. He'd done it in the past. Bierenbaum told Feis that they had had an argument, that she had gone to Central Park and not returned, and that she was still missing when he returned from a family party in New Jersey. Robert "Rob" Biernbaum, D.O. Dr. Robert Bierenbaum, a former plastic surgeon from New York convicted of murdering his wife in 2000, confessed to killing her and then throwing her body out of an airplane and into the Atlantic ocean after decades of maintaining his innocence. IV, 3009-10, Oct. 18, 2000. Failure to object to summation remarks. it is a first professional graduate degree awarded upon graduation from medical school. A state court decision involves an unreasonable application of clearly established Supreme Court precedent if it correctly identifies the governing legal principle but unreasonably applies or unreasonably refuses to extend that principle to the facts of a particular case. Bierenbaum, 748 N.Y.S.2d at 583. I heard the cuffs close round hishands. His specialties include Emergency Medicine, Family Medicine. Medical School / Professional School: ''The conversation lasted 30 seconds, and he wasn't as upset as I would have expected.''. The torso had washed up in Staten Island four years after her disappearance, and the limbs appeared to have been severed, perhaps by a skillful surgeon. We addressed this point in connection with counsel's mistake in referring to a forensic examination in his opening statement, and found no prejudice. To satisfy the first part of the test-performance-he must show[ ] that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Strickland, 466 U.S. at 687. Currently incarcerated, Bierenbaum appeals from the February 26, 2008 judgment of the United States District Court for the Southern District of New York (Sweet, J.) III, 2820, Oct. 12, 2000. They found nothing, I've been cleared, and in the time frame we're talking about it's clear that he's telling Karen Caruana that the cops have cleared him before they've even been inside his apartment Cops hadn't searched anything yet. Mr. Hussey recalled: ''He looked like death warmed over, and I said to him, 'Bob, you look sick.' Directly following this argument he alluded to the films Panic in Needle Park, and Looking for Mr. Goodbar, and suggested, in a similar vein, that these movies did not prove that Katz's drug use and risky behavior were connected to her death. at 583. Dr. Bierenbaum carried on as a good citizen, writing an article in The Grand Forks Daily Herald about how to avoid snowblower injuries. Some in Minot now think of Dr. Bierenbaum's good works as an effort to expiate guilt. All rights reserved. IV, 3212, Oct. 23, 2000. Failure to move for dismissal on the ground of insufficient evidence of specific intent to kill. A state prisoner may fairly present to the state courts the constitutional nature of his claim by claim[ing] the deprivation of a particular right specifically protected by the Constitution. Daye v. Att'y Gen. of the State of N.Y., 696 F.2d 186, 193 (2d Cir.1982) (en banc). School of Medicine - Loma Linda University. Before long, Dr. Bierenbaum, a plastic surgeon, and his wife, Dr. Janet Chollet, an obstetrician-gynecologist, had settled in to medical practices, pitched in on community projects, had a home, a dog and a baby on the way. If a state court decision rests on a state law ground that is independent of the federal question and adequate to support the judgment, Coleman v. Thompson, 501 U.S. 722, 729 (1991), we will not review the issue. The Disappearance of Gail Katz Bierenbaum. See Richardson v. Greene, 497 F.3d 212, 217 (2d Cir.2007). Think about the defendant. She should have made her appointments, she should have been where she said she would be and she could have come home but she didn't and that's why we can tell you that she is dead. Failure to request charge on territorial jurisdiction. University of New England, College of Osteopathic Medicine, Certifications:American Osteopathic Board of Emergency Medicine. As of 2002 when his claim was adjudicated on the merits, and 2003 when his conviction became final, Ohio v. Roberts governed his claim. Rather, the tape's contents clearly demonstrate the feasibility of the People's theory of this case, a theory which all of the circumstantial proof together overwhelmingly shows. Bierenbaum, 748 N.Y.S.2d at 589 (dictum). Petitioner-Appellant Robert Bierenbaum was convicted after a jury trial of murder in the second degree, see N.Y. Bierenbaum had been out on $500,000 bail. The prosecution would have argued that even if the jury believed Sherman was testifying truthfully about what she heard, her testimony was consistent with the prosecution's theory that Bierenbaum killed his wife in the course of an explosive argument. All this means that the decision of the district court is properly affirmed. After the verdict,Snyder ordered him jailed to await sentencing. Bierenbaum had graduated from medical school in 1978, and was a surgical resident at Maimonides Medical Center in Brooklyn, New York. He chokes her to death. He knew in July of 1985, what it would take to render her unconscious. Feb. 25, 2008). Robert "Rob" Biernbaum, D.O. During that period Caruana and Bierenbaum discussed Katz's disappearance. E.g., Henry v. Ricks, 578 F.3d 134, 137 (2d Cir.2009). When Rivera testified at trial, he stated that he could not remember anything about July 7, 1985. Katz had an affair with Anthony Segalas, an investment banker, during the summer of 1984 and the spring of 1985. This was not the first time Bierenbaum had choked her, but it was the first time that she lost consciousness. He completed his Residency in Emergency Medicine from Genesys Regional Medical Center. Sergeant Matthew Rowley of the New York police department's Aviation Unit executed three flights in a Cessna 172 from Caldwell Airport on October 11, 2000, during the trial. WebMD does not provide medical advice, diagnosis or treatment. Relief and SorrowWhen the verdict was read, the victims sister, Alayne Katz ofIrvington, N.Y., burst into tears and slumped over the leg of herbrother, Steven, shaking and sobbing. Dalsass contacted several individuals whose names he had obtained from Bierenbaum or Katz's family who might have information about Katz. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. But his life in Minot was already fraying. Pro. In the four to six months before she disappeared she told her therapist that she was looking for an apartment so that she could separate from Bierenbaum. Do Not Sell or Share My Personal Information. 2023 Rochester Health, Currently accepting new patients at this location. In addition to the evidence detailed above, the prosecution marshaled a wealth of circumstantial evidence that, in the words of the Appellate Division, when attentively review[ed] and critically assesse[d] , and after applying all natural and reasonable inferences, led to the inescapable conclusion that Bierenbaum murdered his wife on July 7, 1985, and the evidence excludes beyond a reasonable doubt any reasonable hypothesis of innocence. People v. Bierenbaum, 748 N.Y.S.2d 563, 574 (N.Y.App.Div.2002). Bierenbaum, 44, clasped his hands in front of him and loweredhis head when the verdict was read by the jury forewoman inManhattan State Supreme Court. Bierenbaum faults the district court for concluding that counsel's efforts to secure her testimony were diligent, and concluding that failure to present her testimony did not prejudice the defense. The trial court also thereafter advised the jury: I have allowed the People to introduce evidence that on another occasion this defendant committed a prior, what we call legally []bad act, [] to wit, the strangling of Gail Katz Bierenbaum to unconsciousness and that was allowed in for certain limiting purposes and I want to make that very clear, as I did at the time such evidence was admitted. We're a special place where you'll receive the best HIV/AIDS medical care, prevention, and support services available today from experts who are recognized worldwide for their innovative treatment therapies, research, and clinical trials expertise. These are not the acts of a suicidalperson, she said. The Strickland standard is rigorous, Bell v. Miller, 500 F.3d 149, 155 (2d Cir.2007): Judicial scrutiny of counsel's performance must be highly deferential [;] every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Although Gail's family believed he was responsible for the disappearance, the police could not build a case for a long time as they lacked the body and concrete . Write a Review . at 3107, Oct. 23, 2000. We disagree. WebMD does not provide medical advice, diagnosis or treatment. A forensic examination of the aircraft yielded no results. Stay up-to-date with how the law affects your life. Contribute to our National Missing Person Day Fundraiser Home Few questioned Dr. Bob, as they called him, who was convicted last week of murdering his first wife. 06 Civ. Law 290.10[1]. Katz was a graduate student pursuing a Ph.D. degree in clinical psychology at Long Island University. The Confrontation Clause of the Sixth Amendment to the United States Constitution states: in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. U.S. Const. We therefore conclude that the state courts were fairly alerted to the constitutional claim, Bierenbaum has exhausted his available state remedies with respect to the claim, and we may reach the merits of the claim. is dean and Professor of Medicine for the College of Medicine at Charles R. Drew University of Medicine and Science. As Dr. Bierenbaum's social efforts overcame the reserve of his new neighbors, his old neighbors were busy digging up his past. Counsel's theory was that Katz left the apartment on Sunday, and met with foul play after she left. Las mejores ofertas para 1972 Foto de prensa del Dr. Harold Lief y el Dr. Robert Heat en la Escuela de Medicina de Tulane estn en eBay Compara precios y caractersticas de productos nuevos y usados Muchos artculos con envo gratis! FindLaw.com Free, trusted legal information for consumers and legal professionals, SuperLawyers.com Directory of U.S. attorneys with the exclusive Super Lawyers rating, Abogado.com The #1 Spanish-language legal website for consumers, LawInfo.com Nationwide attorney directory and legal consumer resources. It ranks in the top 20 in the United States for both research and primary care. NEW YORK Dr. Robert Bierenbaum maintained his innocence in 2000 as he was tried and convicted of killing his first wife 15 years before. Given that the testimony was independently admissible, and the trial court gave a curative instruction in connection with the improper closing argument, defense counsel's mistaken reference to a forensic search did not open the door to prejudicial comments. The email address cannot be subscribed. CALABRESI, Circuit Judge, filed a concurring opinion. Today, local rumor has it, the federal witness protection program relocates people here. He called Katz's mother to see if she had heard from Katz, and went to bed. When two weeks later he saw posters of Katz, he identified her as the woman he had seen, and he called the police. Given the seriousness of the charge, the circumstantial nature of the evidence, and no evidence of any improper motive on the part of the prosecution, the motion had no chance of success. Baran also noted that Katz-Bierenbaum had been apartmenthunting, had gotten a manicure and had bought birth control devicesjust before she vanished. Bibb said one lie was that after Katz-Bierenbaum disappeared, aprivate investigator told the cosmetic surgeon that his wife was awaitress at a seaside resort in California. That is one of the theories that could have happened. The petition was denied on March 9, 2006. Even a neophyte could have found danger. Pressing the point on cross-examination risked alienating the jury for no particular strategic gain. That evening Bierenbaum filed a missing persons report indicating that when Katz was last seen she was wearing pink shorts and a white t-shirt. A trial court may issue a trial order of dismissal as to any count of an indictment on the ground that the trial evidence is not legally sufficient to establish the offense charged. N.Y.Crim. Robert Bierenbaum (born July 22, 1955) is an American former plastic surgeon and convicted murderer. He told Karnofsky that he had gotten into an argument with his wife one day, that she went to cool off in Central Park, that she had been seen one time around the area of Central Park, but had never been seen again. Friends and family posted pictures of Katz in the neighborhood. About Robert Bierenbaum . He faces 25 years to life and is to be sentenced on Nov. 20. None of the alleged errors, individually or collectively, amount to constitutionally deficient representation. Although he followed in the footsteps of his father Dr. Marvin Bierenbaum by becoming a surgeon, he never gave up his dream of becoming the first Jewish astronaut. visit www.rpcn.org. He completed his Residency in Emergency Medicine from Genesys Regional Medical Center. Moreover, it was a reasonable trial strategy to establish a forthright relationship with the jury, by conceding what the defense did not have evidence to contest. at 1889. Was she killed by drug dealers? vol. In this vital role, Biernbaum will oversee Trillium Health's expansion as we provide new services, barrier-free access to medical care . Throughout Bierenbaum's trial and the direct appeal of his conviction, the admission of statements by a declarant not present at trial was governed by Ohio v. Roberts, 448 U.S. 56 (1980), abrogated by Crawford v. Washington, 541 U.S. 36 (2004)). He testified that Katz discussed with him her wish to leave her husband, their constant fights and arguments, and one argument during which Bierenbaum put his hands to her neck. The fact that this defendant allegedly committed a prior bad act is no proof whatsoever that he possessed a propensity or disposition to commit the crime charged in this indictment or any other crime. It was not objectively unreasonable to do so. I add a few words because this case troubles me. According to her affidavit, she was acutely aware of Katz, who frequently screamed at her husband and walked around noisily in high-heeled shoes. She states that on the morning Katz disappeared, Katz was screaming at someone. After Bierenbaum's direct appeal was concluded, he filed a motion with the trial court to set aside the judgment on the grounds that trial and appellate counsel had rendered ineffective assistance of counsel. Bierenbaum had contacted O'Malley on July 10 to inquire about the progress of the investigation. Bierenbaum's wife, Gail Katz Bierenbaum, was last seen on July 7, 1985. He did not find anything. With bitter winters and little company, residents here have little use for moral condemnation. Dr. Bierenbaum told locals that he loved his new town for being free of traffic and crime. To prevail on such a claim under federal law, Bierenbaum must prove that the delay resulted in actual prejudice and that the prosecution's reasons for the delay were improper. No one, other than Bierenbaum, reported seeing Katz after July 6. Oppressive prosecutorial delay may violate the Due Process Clause of the United States Constitution. Dr. Bob Robert "Bob" Bierenbaum loved planes from the moment he came to understand what one was. According to his affidavit, on the Sunday before Katz's parents and the police inquired about her, he relieved the doorman, Edgar Rivera, at approximately 11:30 a.m. At that time he saw Katz leave the front entrance of the building wearing shorts and a t-shirt. His wife had decided to leave medicine and begin law school about 200 miles away in Grand Forks, N.D., where she moved, creating a hectic commuter marriage. In 1998 the investigation was reopened, and the body was exhumed and determined by DNA comparison not to be Katz. In the hangar where Dr. Bierenbaum's Comanche still sits, Val Friesen was on his back with a wrench and a rag, repairing an airplane wing. Moreover, a federal court must apply the clearly established Supreme Court jurisprudence as of either the date of the pertinent state court adjudicat[ion] on the merits, or the date when the state court conviction became final. Mungo v. Duncan, 393 F.3d 327, 333-34 (2d Cir.2004). Bierenbaum then filed a petition for writ of error coram nobis in the Appellate Division contending that appellate counsel had provided ineffective assistance. Dr. Bierenbaum is board-certified in internal medicine, hematology, and oncology. Bierenbaum gave detailed statements of his activities to both investigating officers in the days following Katz's disappearance. But last week, a Manhattan jury found Dr. Bierenbaum guilty of killing his first wife and dumping her body from an airplane. In the week after Katz was reported missing, Dalsass left several telephone messages for Bierenbaum, none of which were returned. 2254(d); see also, e.g., Brown v. Alexander, 543 F.3d 94, 100 (2d Cir.2008). 2254(b)(1)(A). Bierenbaum argues that the Dalsass testimony was inadmissible absent defense counsel's remark, and the prosecution could not therefore have used it in summation. She also told DeCesare that she thought she was being followed. The affair began while Bierenbaum was vacationing in South Hampton on Long Island during the month of August, and lasted about six weeks. At that time the police had not searched his apartment or car. Bierenbaum, currently a resident of Grand Forks, N.D., faces amaximum term of 25 years to life in prison when he is sentencedNov. N E W  Y O R K, Oct. 24, 2000 -- Dr. Robert Bierenbaum, a plastic surgeon who wascharged with killing his wife 15 years ago and dropping her bodyinto the ocean from an airplane, was convicted today ofsecond-degree murder. The state court concluded therefore that defense counsel was not ineffective for failing to move to dismiss for pre-indictment delay. (This case turns on the lack of evidence.) In order to put the absence of physical evidence in context, the prosecution would have been permitted to inform the jury that the police were constrained to a limited search of the apartment several weeks after the disappearance. ''And people would just be like, 'Hey buddy, don't touch me. Bierenbaum said no. 4. The district court determined that Bierenbaum failed to exhaust his state court remedies with regard to his Confrontation Clause claim, finding that he did not argue the claim in his application for leave to appeal to the New York Court of Appeals. Segalas testified that Katz told him she was in a very unhappy marriage, that she was afraid of her husband and that he had tried to strangle her once. Trial Tr. Defense counsel did not move to dismiss the indictment for undue delay. Under the circumstances, it was reasonable for defense counsel not to call Alvarez. Although Bierenbaum did not express any concern about his wife at the party, later that evening at a friend's house he appeared distraught and called the apartment a couple of times. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. Bierenbaum's attorney gave permission for the police to search for fingerprints and anything that might help them identify Katz. He told the detective assigned to investigate the case that he had last seen his wife on July 7 at approximately 11 a.m., and that she had left the apartment to get some sun in Central Park. The state court's determination that the cross-examination of Segalas was not constitutionally deficient was not an unreasonable application of Strickland. He stated that he nevertheless attempted to look for any evidence that a crime had been committed in the apartment, that he discovered no such evidence, but that he had not conducted a detailed forensic search. When Alayne Katz accused him of killing her sister, thedefendant called his missing wife a tramp and said he believedshe had run off with another man. When O'Malley followed this up in a second conversation, Bierenbaum said that Edgar was now not sure whether he'd seen her on that or another day. As physician and friend Marvin proved himself a real . Robert Biernbaum Do 259 Monroe Ave, Rochester, NY, 14607 8 other locations (585) 754-7858 Overview Locations OVERVIEW Dr. Biernbaum graduated from the University of New England College of. His anger at his wife. Assuming that Katz's statements were admitted for the truth of the matters asserted,2 they meet the Roberts standard for admissibility.