See People v. Bierenbaum, 790 N.E.2d 281 (N.Y.2003). One of his duties was to relieve the doorman at lunchtime. 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. DeCesare said that Bierenbaum often mentioned water, that Katz was outside cooling off.. '', Dr. Williams thinks that, regardless of whether or not Dr. Bierenbaum is guilty, he has suffered enough and should be allowed out on a work-release program to continue treating patients. Never, Bibb told the jurors shortly before they begandeliberations, did Bierenbaum, who has a pilots license, evermention that he had spent nearly two hours flying an airplane theafternoon after his wife was last seen. . Defense counsel did not move to dismiss the indictment for undue delay. At the close of its opinion, the Appellate Division disposed of the arguments it did not address as follows: We have examined defendant's remaining contentions and find them unavailing. Bierenbaum, 748 N.Y.S.2d at 589. Although on this record the Appellate Division could have found a claim of lack of intent to kill unpreserved, it addressed the legal sufficiency of both elements of second degree murder: The People proved beyond a reasonable doubt that this defendant had the opportunity, the motive, and the intent to kill his victim, and that it was he who did so. Bierenbaum, 748 N.Y. S.2d at 579. Prior to that date he had not been permitted to enter the apartment. Katz had an affair with Anthony Segalas, an investment banker, during the summer of 1984 and the spring of 1985. 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. It was not objectively unreasonable to do so. The story of Dr. Robert Bierenbaum, a plastic surgeon who practiced in Grand Forks and Minot and later was convicted for the murder of his wife in their Manhattan apartment, will air in a two-hour . He called Katz's mother to see if she had heard from Katz, and went to bed. See Feliz, 467 F.3d at 232. Not only that's not disputed by us, but that she likely died some time on July 7, 1985. Trial Tr. On cross-examination Davis admitted that he had told an investigator for the defense that the woman he'd seen was tall and statuesque, and explained that he had confused his description of the missing woman by likening her to two different women, one tall with her face and one short with her body. Rivera's testimony was not particularly damaging to Bierenbaum's case. holds a Master's degree in Epidemiology from the State University of New York at Buffalo and a Doctorate of Osteopathy from the University of New England. For this strategy, the defense had no particular need to elicit evidence that Katz was a regular as opposed to occasional user. 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. He said, 'I just have a lot on my mind.' Robert Bierenbaum married his second wife, Dr. Janet Chollet, after moving to Las Vegas, Nevada, and the couple had a child together, according to The Charley Project. This conclusion was neither contrary to nor an unreasonable application of the Supreme Court's Confrontation Clause precedent in 2002 and 2003. 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 ). As of 2002 when his claim was adjudicated on the merits, and 2003 when his conviction became final, Ohio v. Roberts governed his claim. The Appellate Division found the error unpreserved, and declined to review it. The torso was ruled out as belonging to Ms. Katz-Bierenbaum, whose remains have never been found. Under Roberts, the statements of an unavailable hearsay declarant were admissible only if [they bore] adequate indicia of reliability, which could be satisfied by demonstrating that the evidence fell within a firmly rooted hearsay exception, or that the evidence had particularized guarantees of trustworthiness. 448 U.S. at 66. The motion was denied on September 6, 2005, and leave to appeal was denied on January 12, 2006. A forensic examination of the aircraft yielded no results. Katz asked Beale if she could move in with her. Indeed, Bierenbaum does not argue to this Court (except parenthetically) that the challenged hearsay declarations were in fact unreliable. In the late 1800's, the railroad lured transients to the town's many brothels and saloons. He didn't stop when he knew she was unconscious. 2120, 2008 WL 515035 (S.D.N.Y. Today, local rumor has it, the federal witness protection program relocates people here. None of the alleged errors, individually or collectively, amount to constitutionally deficient representation. To satisfy the second part of the Strickland test-prejudice-Bierenbaum must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id., 466 U.S. at 694. The Appellate Division rejected these claims and affirmed the conviction on October 22, 2002. The prosecution called Katz's sister Alayne as a rebuttal witness. See Bierenbaum v. Graham, No. Robert "Rob" Biernbaum, D.O. Deborah Prothrow-Stith, M.D. Albany Medical College ; Given that the Appellate Division reviewed the claim that the evidence was legally insufficient to prove that Bierenbaum intended to cause Katz's death, he cannot claim that counsel was ineffective in failing to preserve the issue for appeal. Bierenbaum was sentenced on November 29, 2000. WebMD does not provide medical advice, diagnosis or treatment. Bierenbaum told Caruana that he had hired a private investigator who had found evidence that Katz was in California. . 1. If you wanted to start a new life, free of reproach or inquiry, this remote prairie town of 35,500 might be the place. The motion was denied. The three psychiatrists, who treated Dr. Bierenbaum briefly in 1983, when he and his wife lived on the Upper East Side, warned his wife at the time that she was in danger. Sherman would have testified that she believed Katz left the apartment after the door slammed. Manhattan investigators were exhuming a woman's torso from a Queens cemetery and running DNA tests to determine whether it was that of his first wife, Gail Katz-Bierenbaum, who had disappeared in 1985. Bierenbaum told Dalsass that he had awakened at approximately 9:30 Sunday morning, that Katz had received a telephone call from an acquaintance that disappointed her, and that she left at about 11 a.m. after an argument, telling him that she intended to go to Central Park to get some sun. 2005 - 2023 WebMD LLC. Bierenbaum had been out on $500,000 bail. The decision not to do so was a defensible trial strategy. 2254(d); see also, e.g., Brown v. Alexander, 543 F.3d 94, 100 (2d Cir.2008). Failure to object to summation remarks. Katz told her that she was looking for an apartment and that she was going to tell her husband that weekend that she was leaving. 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. The conviction leaves the people of Minot with a question. Defense counsel decided not to call Alvarez. Nontestimonial statements therefore do not implicate the Confrontation Clause. When a state court has adjudicated the merits of a petitioner's claim, a federal court may grant an application for a writ of habeas corpus only if the adjudication of the claim-(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. ''The conversation lasted 30 seconds, and he wasn't as upset as I would have expected.''. At that time the police had not searched his apartment or car. 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). ''He refused to talk to us,'' Mr. Maixner said. The passage quoted above demonstrates that the Appellate Division found particularized guarantees of trustworthiness in the challenged statements. We've now expanded our services to include comprehensive medical care for HIV negative and LGBT communities. About three weeks after Katz disappeared, Bierenbaum began an affair with Karen Caruana, a nurse educator at Maimonides Medical Center where Bierenbaum was a surgical resident. 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. There was evidence that Bierenbaum regularly carried heavy duffel bags. Bierenbaum told Katz's friend Ellen Schwartz that he had spoken with Katz's therapist Dr. Baran, who had told him that Katz was very depressed and she was concerned that Katz might hurt herself. Many of our partners in care are also providing services on site, just as they did before. vol. The prosecution did argue in summation that Bierenbaum lied about the doorman, but the thrust of the argument was that Bierenbaum never spoke with Rivera at all in the days after Katz's disappearance.3 The Alvarez testimony, if believed, would not have countered this argument, as Alvarez did not claim that he'd mentioned his sighting of Katz to Bierenbaum, or anyone else, during this period. His specialties include Emergency Medicine, Family Medicine. He was awaiting trial at his parents' home in East Orange, N.J., while his wife and daughter were in Pittsburgh. His arrest came nearly 15. The affair began while Bierenbaum was vacationing in South Hampton on Long Island during the month of August, and lasted about six weeks. He did not see her return. holds a Master's degree in Epidemiology from the State University of New York at Buffalo and a Doctorate of Osteopathy from the University of New England. Three times Rowley loaded a bag containing one hundred ten pounds of sand and rice into the plane, flew out over the ocean, and ejected the bag, each time performing a different maneuver to get the bag out of the plane. Bierenbaum told Feis that the cats had fouled the rug and that he was having it cleaned. In 1984 Katz told her about a time in 1983 when Bierenbaum noticed her smoking a cigarette on the terrace of their apartment, became violent and began choking her. But his exotic skills and civic spirit soon won over the town: he published a bagel recipe in the local newspaper, read Hebrew amid the 20-some congregants of the tiny clapboard synagogue, even flew members of the Rotary Club to Mexico in his twin-engine Comanche to give free medical care to orphans. On appeal to the Appellate Division, First Department, Bierenbaum argued that his guilt was not proven beyond a reasonable doubt. Katz told her that the night before she took her Graduate Record Exam, Bierenbaum choked her to unconsciousness because she smoked a cigarette. She also told DeCesare that she thought she was being followed. Dalsass testified that Bierenbaum's attorney gave permission for the police to conduct a limited search for items that might help to identify Katz. Had defense counsel moved to dismiss the indictment, the motion would not have been granted, and therefore there was no reasonable probability that the outcome-proceeding to trial-would have been different. Sherman's testimony would not have undermined confidence in the jury's guilty verdict. 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. Dr. Ellen Schwartz, a close friend from graduate school, testified that Katz told her she was afraid of her husband, and that she was planning to leave him soon. Bierenbaum said that she had gone out earlier in the day and had not returned to their apartment. ''We're from North Dakota and we trust people,'' said Mike Berg, a retired pharmacist and former head of the Rotary Club, who flew to Mexico with Dr. Bob. 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. But Dr. Bierenbaum had a strong record, excellent training and appeared to have an unblemished past, Mr. Schwann recalled, until New York City investigators, accompanied by Mr. Maixner, arrived in November 1998 to look into some issues. Some in Minot now think of Dr. Bierenbaum's good works as an effort to expiate guilt. The prosecution argued:What does he do? Katz was a graduate student pursuing a Ph.D. degree in clinical psychology at Long Island University. Baran also noted that Katz-Bierenbaum had been apartmenthunting, had gotten a manicure and had bought birth control devicesjust before she vanished. Though he doesn't like to admit it, Mike Berg, the friend from the Rotary Club, is angry. Robert "Rob" Biernbaum, D.O. DeCesare testified that Katz told her that Bierenbaum had threatened to kill her if she left him. 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. In the week after Katz was reported missing, Dalsass left several telephone messages for Bierenbaum, none of which were returned. Bierenbaum then filed a petition for writ of error coram nobis in the Appellate Division contending that appellate counsel had provided ineffective assistance. 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. Feb. 25, 2008). art. Here, Bierenbaum expressly invoked the Confrontation Clause to both appellate courts. The rule applies with equal force whether the state-law ground is substantive or procedural. Lee v. Kemna, 534 U.S. 362, 375 (2002). 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. Strickland, 466 U.S. at 689 (citations and internal quotation marks omitted). Baran testified that she never told Bierenbaumthat. Bierenbaum told O'Malley that the marriage was in bad shape and that both of them were in therapy to attempt to improve their relationship. UC San Diego Health Physician Network is an alliance of health care providers based in San Diego, Riverside and Imperial counties. On Saturday, July 6, 1985, Katz kept a follow-up appointment with her gynecologist, and made a further appointment in December. Please enter a valid 5-digit Zip Code. June Sherman lived directly below the Bierenbaum apartment. Petitioner-Appellant Robert Bierenbaum was convicted after a jury trial of murder in the second degree, see N.Y. School of Medicine - Loma Linda University. 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. In summation the prosecution improperly argued that Bierenbaum and his attorney prevented the police from conducting a complete search. Id., 744 N.E.2d at 131 (citations, internal quotation marks and ellipses omitted). A strong piece of the defense was the fact that there was no physical evidence to link Bierenbaum to the crime. Dr. Charles Hirsch, Chief Medical Examiner for New York City, testified that prior to the onset of rigor mortis, a dead body is pliable. The body of a woman five feet three inches tall, weighing about one hundred ten pounds could be folded and tied into a package about thirty-six inches long. Alayne Katz testified that her sister told her about a letter she had received from Bierenbaum's psychiatrist warning her about Bierenbaum's potential for dangerousness and advising her to move out. (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. With your consent, your healthcare 7. ''Murderer'' is the word Ms. Katz-Bierenbaum's sister, Alayne Katz, consistently used to describe him. Another lie was that her psychotherapist, Dr. Sybil Baran, hadtold Bierenbaum that his wife was suicidal and might have killedherself, Bibb said. The prosecution also produced the testimony of Karen Caruana, a woman with whom Bierenbaum had a brief affair shortly after Katz disappeared. Detective Virgilio Dalsass from the 19th precinct, where Bierenbaum and Katz resided, and Detective Thomas O'Malley from the Missing Persons Bureau were assigned to investigate the case. He requested an evidentiary hearing. It was not unreasonable for the Appellate Division to conclude that the reliability of Katz's statements was amply supported. Id. Jason Bierenbaum, MD, is a medical oncologist and hematologist at UPMC Hillman Cancer Center. visit www.rpcn.org. Alayne Katz, Katz's sister, testified that Katz had called her in the fall of 1983, extremely upset, and told her that her husband had tried to strangle her, that she lost consciousness, Bierenbaum revived her and apologized profusely. Although trial counsel made no contemporaneous objection to the summation, before the jury was charged he moved for a mistrial on this and other grounds.5 The trial court denied the motion, finding that the prosecution had not argued propensity, but that the incident was probative of other issues in the case, particularly intent. He received his. They resided in a twelfth-floor apartment on East 85th Street in Manhattan. vol. The videotapes were subsequently offered into evidence without objection. Dalsass asked Bierenbaum to narrate specifically and exactly how he spent the weekend that Katz disappeared. She states that on the morning Katz disappeared, Katz was screaming at someone. [Bierenbaum] tells Karen Caruana, You know the cops searched my apartment. 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. TimesMachine is an exclusive benefit for home delivery and digital subscribers. Katz told Feis that she intended to use the letter as leverage in divorce proceedings by threatening to use it to ruin his career. 9. Forensic tests of two automobiles that Bierenbaum was driving at the time also yielded no results. One of the main reasons is because the defendant wouldn't let them search the apartment. He works in Grand Forks, ND and specializes in Surgery and Internal Medicine. Failure to request charge on territorial jurisdiction. This limited search was conducted on September 30; nevertheless at that time Dalsass looked around the apartment to see if he could detect any evidence that a crime had been committed there. I, 6. Denise Kasenbaum, a friend, testified that Katz had told her there were problems in the marriage, incidents of violence, that Bierenbaum was very controlling, and that she was not happy. He described her to the jury as deeply tanned, about five foot one, with a well-developed body. ''Helpful'' is the word most people use here to describe Dr. Bierenbaum, a man who fixed his colleagues' computers and brought his neighbors chicken soup. The Appellate Division ruled that the statements bore numerous hallmarks of reliability: She was speaking spontaneously; she repeated the statements separately to various people in her life; her statements about the troubled side of their marriage were a natural consequence of corroborated facts about their marriage; she was, by all indications, in good mental health; there appears no reason for her to have fabricated the matters she discussed at the time of her utterances; and her statements largely concerned private matters that some would be embarrassed or otherwise reluctant to disclose. Katz cooked steaks that night and they had a romantic candlelight dinner. He has 26 years of experience. Defense counsel did not object to the instruction or request a stronger one. Courts have also considered the status or relationship to the declarant of the person to whom the statement was made, whether there was a coercive atmosphere, whether it was made in response to questioning and whether the statements reflect an attempt to shift blame or curry favor. 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. On the evening of Sunday, July 7, 1985, Bierenbaum attended a family gathering for a nephew's birthday in New Jersey, without Katz. '', See the article in its original context from. Dr. Bierenbaum told locals that he loved his new town for being free of traffic and crime. Bierenbaum argued undue pre-indictment delay to the state court in his motion to set aside the judgment. 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. Darrel Williams, a prominent eye surgeon and one of Dr. Bierenbaum's closest friends here, recalled of that morning, ''He looked a little haggard and seemed to be rushing around.'' Katz told DeCesare that she had gone out on the terrace of their apartment to smoke a cigarette, where he confronted her and choked her. To Karnofsky Bierenbaum speculated that Katz was in a fugue state or that she had run off with someone to the Caribbean. Penal Law 125.25[1]. Doctoral Student: Professors are approachable and dedicated, as well as being experts in their respective fields. During trial the evidence was uncontroverted that Bierenbaum repeatedly stated to friends, to relatives and to the police that he last saw his wife in their apartment in Manhattan.

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