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. We may not consider a state prisoner's application for a writ of habeas corpus unless the applicant has exhausted available state remedies by fairly present[ing] his claim in each appropriate state court (including a state supreme court with powers of discretionary review). Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks omitted); accord Georgison v. Donelli, 588 F.3d 145, 153 (2d Cir.2009); see 28 U.S.C. This was the same year that a partial female body washed ashore in Staten Island, New York. Before leaving town, Dr. Bierenbaum stopped in at Pietsch's to pay a bill. 2120, 2008 WL 515035 (S.D.N.Y. 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.. 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. Pro. Caruana testified that Bierenbaum told her that his apartment and car had been searched and that he was clean as far as any police investigation was concerned. Dr. Robert M Biernbaum - Rochester NY, Emergency Medicine at 259 Monroe Ave. He told another renter that he had gone looking for Katz in Central Park, found her towel and suntan lotion, but she was gone. Decker, 912 N.E.2d at 1043 (quoting People v. Taranovich, 335 N.E.2d 303, 306 (N.Y.1975)). 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. Caruana testified that Bierenbaum told her in August or September that his apartment had been searched and that the police had cleared him. One of the main reasons is because the defendant wouldn't let them search the apartment. Sherman heard the noise of the high-heeled shoes, then she heard the door slam, and both the shouting and the sound of high heels on the floor stopped. Doctor Convicted in 1985 Missing Body Case - ABC News In 1998 the investigation was reopened, and the body was exhumed and determined by DNA comparison not to be Katz. 3. For more information, Bierenbaum now argues that his counsel was ineffective for failing to properly object to the admission of the videotapes. Now, you know what his intent was.Trial Tr. Learn more about FindLaws newsletters, including our terms of use and privacy policy. Leave to appeal to the New York Court of Appeals was denied on March 10, 2003. 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. Leave to appeal that decision to the New York Court of Appeals was denied on May 30, 2006. 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. Failure to cross-examine witness Anthony Segalas concerning Katz's use of cocaine. Dr. Bierenbaum specializes in lung cancer, gastrointestinal cancers, and myelodysplasia. 7. Dalsass contacted several individuals whose names he had obtained from Bierenbaum or Katz's family who might have information about Katz. Furthermore, the statements were made mostly to those close to her, in contexts completely devoid of coercion, not in response to anyone's questioning, nor under circumstances at all suggestive of any attempt to curry anyone's favor. Katz's friend Yvette Feis was in the apartment several days after Katz was reported missing, noticed that the living room rug was gone and asked about it. Hirsch also stated that a body could be disarticulated at the joints, a simple process that someone trained in anatomy could accomplish in ten minutes. He also was the executive responsible for quality measures and meaningful use. The Appellate Division concluded that the trial court's cautionary instructions about the prior assault evidence were legally satisfactory and adequately protected Bierenbaum's right to a fair trial. Dr. Robert Bierenbaum, then 39, an intense New Yorker with piercing eyes and an in-your-face manner, seemed misplaced amid the brawny and laconic citizenry. Had the defense called Alvarez, and had he testified in accordance with his affidavit, the jury would have been presented with the testimony of the relief doorman, who remembered not only the departure of a particular tenant, but what she was wearing on an unremarkable Sunday fifteen years before the trial. 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. Segalas said she is the one who made the connection. 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. 2 reviews. During that period Caruana and Bierenbaum discussed Katz's disappearance. Prior to MultiCare, Biernbaum was Rochester Regional Health System's chief architect for all Epic solutions and in charge of informatics for five hospitals and more than 100 ambulatory sites. You watch as it literally squeeze[s] the life out of another human being. Dr. Robert M Biernbaum - Rochester NY, Emergency Medicine - Health Care 6 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 passage quoted above demonstrates that the Appellate Division found particularized guarantees of trustworthiness in the challenged statements. He'd done it in the past. When two weeks later he saw posters of Katz, he identified her as the woman he had seen, and he called the police. Bierenbaum also takes exception to his trial counsel's failure to object to the prosecution's contention that he prevented a complete forensic examination of the apartment. I heard the cuffs close round hishands. vol. 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. 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. Mr. Berg recalls it as the most remarkable experience of his life, one that ''fulfills a person's reason for being here.''. If you are not eligible for any of these plans, we will help you identify other healthcare access options to meet your needs. 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. She stated that he told her this before the end of September. His specialties include Emergency Medicine, Family Medicine. Ladies and gentlemen, eyeballing the bathtub and walking around the apartment are no substitute for a complete forensic search . ''Murderer'' is the word Ms. Katz-Bierenbaum's sister, Alayne Katz, consistently used to describe him. Dr. Bierenbaum told locals that he loved his new town for being free of traffic and crime. Sherman's testimony would not have undermined confidence in the jury's guilty verdict. New's 2023 Best Medical School Rankings, UCLA's David Geffen School of Medicine ranks higher in its primary care and research compared to other medical schools in L.A. The torso was ruled out as belonging to Ms. Katz-Bierenbaum, whose remains have never been found. CALABRESI, Circuit Judge, filed a concurring opinion. Although the police wished to search for any evidence that would shed light on Katz's disappearance, the investigators felt they did not have probable cause to obtain a search warrant. Think about him standing over Gail Katz as she feels and he watches the life ebbing from her body. Dr. Yvette Feis, Katz's former professor and friend, testified that Katz told her she was looking for other sexual partners. Anthony Segalas testified at trial that he and Katz used cocaine together twice. He told O'Malley that Katz was depressed and suicidal. 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. (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). Bierenbaum had contacted O'Malley on July 10 to inquire about the progress of the investigation. The defendant and his attorney stopped the cops from doing a complete forensic search on the apartment. Some in Minot now think of Dr. Bierenbaum's good works as an effort to expiate guilt. With bitter winters and little company, residents here have little use for moral condemnation. A state law ground is only adequate to support the judgment and foreclose review of a federal claim if it is firmly established and regularly followed in the state, and application of the rule would not be exorbitant. Garvey v. Duncan, 485 F.3d 709, 713-14 (2d Cir.2007) (quoting Lee, 534 U.S. at 376). It is possible. Gail Beth Katz-Bierenbaum - The Charley Project Assistant District Attorney Daniel Bibb said in his summationthat Bierenbaum told proactive and reactive lies, dependingon whether he was speaking before or after someone asked aboutKatz-Bierenbaum. Anyone can read what you share. We've now expanded our services to include comprehensive medical care for HIV negative and LGBT communities. In 1999 Bierenbaum was indicted and charged with murder in the second degree in her death. 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. Defense counsel could reasonably have concluded that it made no sense to request a territorial jurisdiction instruction-unsupported by any evidence-that contradicted the defense's theory of the case, that Katz left the apartment alive and was alive that afternoon on the streets of Manhattan. 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). The Appellate Division held that Bierenbaum had not effectively protested the admission of the videotapes under New York's preservation rule, which require[s], at the very least, that any matter which a party wishes the appellate court to decide have been brought to the attention of the trial court at a time and in a way that gave the latter the opportunity to remedy the problem and thereby avert reversible error. Richardson v. Greene, 497 F .3d 212, 218 (2d Cir.2007) (quoting Garcia v. Lewis, 188 F.3d 71, 78 (2d Cir.1999)); see N.Y.Crim. at 3107, Oct. 23, 2000. Your recollection controls. He was awaiting trial at his parents' home in East Orange, N.J., while his wife and daughter were in Pittsburgh. February 22, 2008. Dr. Robert Biernbaum, DO, Emergency Medicine - WebMD vol. The investigation was closed in April 1987. Surgery, Internal Medicine. It was a reasonably defensible legal strategy to conclude that on the state of the evidence at trial the jury should be asked to make a choice between two, not three theories of the case. Bierenbaum argues that the challenged statements were inadmissible under either the Roberts or the Crawford and Davis standard: that the statements were admitted for their truth, that no hearsay exception applied, that the statements showed no particularized guarantees of trustworthiness, and that the statements were testimonial. At that time the police had not searched his apartment or car. I also believe that the evidence of guilt is very thin. Thus, Bierenbaum's challenge to the admission of Katz's statements must be evaluated under Roberts. Bierenbaum suggests now that a jury could have concluded that if he killed his wife on July 7, 1985, he might have done so in New Jersey and not in New York. 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). Trial Tr. Baran also noted that Katz-Bierenbaum had been apartmenthunting, had gotten a manicure and had bought birth control devicesjust before she vanished. Her body was never found. Baran testified that she never told Bierenbaumthat. 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). ABC news anchor John Quinones (right) interviews Daniel Bibb, an original prosecutor in the case involving the murder of Gail Katz-Bierenbaum by her husband Dr. Robert Bierenbaum, for a "20/20" tv . 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. Moreover, at that point in the summation, the prosecuting attorney was cataloguing what he termed Bierenbaum's lies-to Dalsass, to O'Malley, to Caruana, and several other witnesses. Feb. 25, 2008). 06 Civ. Even Dr. Chollet's brother, also a physician, had earlier been recruited to work there. 5. (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. Bierenbaum faults his trial counsel for failing to object when the prosecution argued in summation that Bierenbaum allowed an argument to get explosive and choked Katz as he had done before, only this time to her death.4 He argues that the statements invited the jury to consider the 1983 choking incident as evidence of propensity, and that there was no evidence that Katz died by strangulation or that Bierenbaum stood over her as she died. Martin learned that Bierenbaum was a licensed pilot. On February 25, 2008, the district court denied the petition without conducting an evidentiary hearing. The respondents argued this position below, but on further review have withdrawn their argument, agreeing with Bierenbaum that he presented his constitutional claim in his letter brief submitted to the New York Court of Appeals on December 10, 2002. See Hemstreet v. Greiner, 491 F.3d 84, 90 (2d Cir.2007). Katz moved out and lived for a time with her grandfather. 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. MEDICAID SCAM WAS 2ND MOTIVE: WITNESS - New York Post Was she killed by drug dealers? And as always, patient privacy and confidentiality remain of the utmost importance. Dr. Bierenbaum is board-certified in internal medicine, hematology, and oncology. No one in the group would admit to shock when learning of the doctor's past, though the word ''surprise'' brought forth some thoughtful ''mmm-hmms.'' That is not disputed. Bierenbaum then filed a petition for writ of error coram nobis in the Appellate Division contending that appellate counsel had provided ineffective assistance. When You Have No Body: Corpus Delicti and the Bierenbaum Case Katz had an affair with Anthony Segalas, an investment banker, during the summer of 1984 and the spring of 1985. SECRET PAST OF COOL DOC WITH FIERY TEMPER - New York Post '', 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. He did not find anything. To Karnofsky Bierenbaum speculated that Katz was in a fugue state or that she had run off with someone to the Caribbean. She would have had to admit that she did not see Katz leave, nor could she be sure that the door was the exterior door, rather than an interior door. Robert BIERENBAUM, Petitioner-Appellant, v. Harold D. GRAHAM, The Superintendent of Auburn Correctional Facility, Andrew Cuomo, Attorney General State of New York, Respondents-Appellees. The state court weighed the five Taranovich factors and concluded that if defense counsel had moved to dismiss the indictment, the motion would unquestionably have been denied. 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. A New Life Re-examined; After Murder Verdict, Town Questions Doctor, https://www.nytimes.com/2000/10/30/nyregion/a-new-life-re-examined-after-murder-verdict-town-questions-doctor.html. Bierenbaum told Feis that the cats had fouled the rug and that he was having it cleaned. 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.'' [I]n a proper case, a lengthy and unjustifiable delay in commencing the prosecution may require dismissal even though no actual prejudice to the defendant is shown. People v. Singer, 376 N.E.2d 179, 186 (N.Y.1978). Now we will tell you that the evidence will also show that she is dead. 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. Oppressive prosecutorial delay may violate the Due Process Clause of the United States Constitution. 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. Healthcare DirectoryRobert M. Biernbaum DO - Rochester Health 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. As Dr. Bierenbaum's social efforts overcame the reserve of his new neighbors, his old neighbors were busy digging up his past. See Galdamez v. Keane, 394 F.3d 68, 78 (2d Cir.2005) (reaching the merits of petitioner's confrontation clause claim where briefs and leave application, fairly construed, raised the issue). This Court granted a certificate of appealability on September 23, 2008. Doctoral Student: Professors are approachable and dedicated, as well as being experts in their respective fields. ''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. Please verify insurance information directly with your doctor's office as it may change frequently. He said that he had called Katz's mother and two of her friends to see if she was there. The search was thus limited to the scope of the permission given. Former New York surgeon admits killing wife, throwing body from Katz also told Kasenbaum that she had gotten a letter from Bierenbaum's psychiatrist. Dr. Robert Biernbaum is a Emergency Medicine Physician in Victor, NY. There was evidence that Bierenbaum regularly carried heavy duffel bags. Boys don't touch boys here.' As of 2002 when his claim was adjudicated on the merits, and 2003 when his conviction became final, Ohio v. Roberts governed his claim. Hillard Wiese, Katz's cousin, testified that Katz reported to him in the fall of 1983 that she had an argument with her husband during which he had choked her to unconsciousness. Failure to object to summation remarks. 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. 2120, 2008 WL 515035 (S.D .N.Y. The strategy was a reasonable one, given that the trial court would have provided a limiting instruction along the lines of the one given in the charge. See Williams, 529 U.S. at 413; Ramdass v. Angelone, 530 U.S. 156, 166 (2000); accord Kennaugh v. Miller, 289 F.3d 36, 45 (2d Cir.2002). That is one of the theories that could have happened. ''We're so sparsely populated around here,'' he said, ''we even have to import our criminals.''. Phone: (585) 754-7858,(585) 545-7200. visit www.rpcn.org. 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). Defense counsel did not object to the instruction or request a stronger one. Dr. Biernbaum graduated from the University of New England College of Osteopathic Medicine in 1997. ''. He faces 25 years to life and is to be sentenced on Nov. 20. The educational structure is rigorous, but the real draw of this school is the open and accepting atmosphere. 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. Wiese advised her to leave immediately. DeCesare said that Bierenbaum often mentioned water, that Katz was outside cooling off.. A New Life Re-examined; After Murder Verdict, Town Questions Doctor Segalas and Katz used cocaine together. See People v. McLaughlin, 606 N.E.2d 1357, 1359 (N.Y.1992) ([F]or the State to have criminal jurisdiction, either the alleged conduct or some consequence of it must have occurred within the State.). In summation, counsel attacked the prosecution's use of the videotapes that showed how a body could have been loaded into an airplane and dropped into the sea, asserting that the videotapes did not supply proof of what happened to Katz. Detective O'Malley testified that Bierenbaum told him he'd made a mistake, and that Rivera wasn't sure when he'd seen Katz. Former NY surgeon admits killing wife, throwing body from airplane in 1985 (NCD) (NCD) NEW YORK Dr. Robert Bierenbaum maintained his innocence in 2000 as he was tried and convicted of killing . Mr. Hussey recalled: ''He looked like death warmed over, and I said to him, 'Bob, you look sick.' This was not the first time Bierenbaum had choked her, but it was the first time that she lost consciousness. Bierenbaum told Caruana that he had hired a private investigator who had found evidence that Katz was in California. 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. In May 1989 a torso found washed up on a beach in Staten Island was determined by x-ray comparison to be Katz. In the week after Katz was reported missing, Dalsass left several telephone messages for Bierenbaum, none of which were returned. See Feliz, 467 F.3d at 232. Later in his summation, he returned to the drug-related disappearance theory: Segalas-they did a little bit, what they thought was cocaine that was left in the house. Bierenbaum said no. Bierenbaum repeated that he had remained in the apartment all day until 5:30 p.m., when he left for the family party in New Jersey, arriving there at approximately 6:30 p.m. During the trial defense counsel unsuccessfully attempted to serve Sherman, who had moved to Arizona.
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