She states that on the morning Katz disappeared, Katz was screaming at someone. 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. Bierenbaum claims that his counsel was ineffective because his motions did not specify that he was challenging the element of intent to kill, and that therefore he could not seek review of this claim on direct appeal. 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). Boys don't touch boys here.' 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. Bierenbaum argued undue pre-indictment delay to the state court in his motion to set aside the judgment. Contribute to our National Missing Person Day Fundraiser Home WebMD does not provide medical advice, diagnosis or treatment. 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. 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). 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. Katz told DeCesare that she was unconscious, and that Bierenbaum had to call 9-1-1 for assistance. ''It's the loss of his life and the good he does to help other people. 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. Martin learned that Bierenbaum was a licensed pilot. Phone: (585) 754-7858,(585) 545-7200. I, 1889. Had the defense gotten Segalas to admit that he and Katz used cocaine on several occasions, the defense suggestion that she may have been killed by drug dealers would still have been plagued by lack of evidence, as the state court noted. By last December, the life he had built was over. Albany Medical College ; 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. Defense counsel did not move to dismiss the indictment for undue delay. Trial counsel conceded in his opening statement that Katz died on July 7, 1985: [L]et's talk about some things that are not at issue here. Late in 1984 or early 1985 Katz told her that she had received a letter from Bierenbaum's psychiatrist warning her that Bierenbaum posed a danger to her, and suggesting that Katz separate from him. Defense counsel made no contemporaneous objection, but after the summation and before the jury charge he moved for a mistrial on that and other grounds. That is not disputed. Defense counsel did not object to the instruction or request a stronger one. 2. at 583. Grand Forks, ND 58201 . He also argued, among other issues, that the trial court erroneously 1) allowed the jury to learn of the existence and nature of the letter written to Katz by Bierenbaum's psychiatrist warning her of the danger Bierenbaum posed to her; (2) allowed various people to testify about Katz's verbal statements to them describing Bierenbaum's threatening remarks and behavior; and (3) permitted the jury to watch the videotaped demonstration showing how a pilot flying solo may load a duffel bag containing a 110-pound body into a Cessna 172 airplane, fly over the ocean and eject the bag. A petitioner has fairly presented his claim only if he has informed the state court of both the factual and the legal premises of the claim he asserts in federal court. Jones v. Keane, 329 F.3d 290, 294-95 (2d Cir.2003) (internal quotation marks omitted) (quoting Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir.1997)). 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. On that point we agree with the Appellate Division, the post-judgment motion court and the district court that the contents of the videotape[s] depict a scenario that was anything but speculation. Bierenbaum does not suggest that counsel should not have stressed the lack of evidence, or should not have mentioned that searches of the apartment, cars and airplane turned up nothing. 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 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. It follows that the state court's rejection of Bierenbaum's ineffective assistance of counsel claim was not an unreasonable application of the Strickland standard. ''Murderer'' is the word Ms. Katz-Bierenbaum's sister, Alayne Katz, consistently used to describe him. The videotapes were subsequently offered into evidence without objection. 6. CALABRESI, Circuit Judge, filed a concurring opinion. In the 15 years since his wife, Gail Katz-Bierenbaum, disappeared, Dr. Bierenbaum remarried, had a baby girl and built a thriving medical practice in Minot, N.D. Bierenbaum had graduated from medical school in 1978, and was a surgical resident at Maimonides Medical Center in Brooklyn, New York. He lets it get explosive and as he has done before, as only he has done before, he places his hands around her neck and begins to choke her. The next morning he went to work, and that evening reported Katz missing. Few questioned Dr. Bob, as they called him, who was convicted last week of murdering his first wife. None of the alleged errors, individually or collectively, amount to constitutionally deficient representation. visit www.rpcn.org. Under New York law, a motion to dismiss for insufficient evidence must be specifically directed at the alleged error. People v. Gray, 652 N.E.2d 919, 921 (N.Y.1995) (internal quotation marks omitted). Petitioner-Appellant Robert Bierenbaum was convicted after a jury trial of murder in the second degree, see N.Y. McCullough testified that Katz told her that her husband had gotten angry at her and choked her because she had been smoking a cigarette. 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. Medical School & Residency. Katz had an affair with Anthony Segalas, an investment banker, during the summer of 1984 and the spring of 1985. Detective O'Malley testified that Bierenbaum told him he'd made a mistake, and that Rivera wasn't sure when he'd seen Katz. 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.). 1200 S Columbia Rd, Grand Forks, ND, 58201. ''How odd is it that a murderer had dinner at my house, a Seder no less,'' said Harriet Epstein, originally from Queens, who briefly ran the only bagel store here and whose late husband, a wealthy and prominent doctor, befriended and worked with Dr. Bierenbaum. During the trial defense counsel unsuccessfully attempted to serve Sherman, who had moved to Arizona. She also told DeCesare that she thought she was being followed. asked Stephanie, a bookkeeper in town who was treated by Dr. Bob and who asked that her last name not be used. 1. 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 petition was denied on March 9, 2006. Medical School / Professional School: Although defense counsel mistakenly referred to the search of Bierenbaum's apartment as a forensic search, omitting the term forensic from counsel's opening statement would not have prevented the prosecution from eliciting Dalsass's testimony that a limited search of the apartment was conducted several weeks after Katz disappeared. Nontestimonial statements therefore do not implicate the Confrontation Clause. One of his duties was to relieve the doorman at lunchtime. Bierenbaum faults defense counsel for failing to impeach Segalas with his prior statements, claiming that this damaged the defense theory that Katz's drug usage and risky behavior may have led to her disappearance. He received a medical degree at Eastern Virginia Medical . 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. They later moved to. (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. During their second conversation, Bierenbaum told O'Malley that he had been mistaken and that the doorman thought it was another day that he had seen Katz. Dr. Robert Bierenbaum . He works in Grand Forks, ND and specializes in Surgery and Internal Medicine. When O'Malley asked him why he waited until the evening of the following day to report Katz missing, Bierenbaum stated that he felt she would return, and when she didn't friends advised him to notify the police. vol. 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 described going to work Saturday morning, leaving the hospital and visiting his father, returning home around noon to go out to eat and do some shopping with his wife, including buying bras at a lingerie store and cat food at a pet supply store. The United States Supreme Court decisions in Crawford and Davis v. Washington, 547 U.S. 813 (2006), confined the scope of the Confrontation Clause to testimonial statements. ''He brought us all little vials of grease'' for airplane parts, said Chris Grima, a mechanic whose wife made the pie. In fact, the police were not permitted to conduct a forensic search of the apartment. . For more information, Forensic tests of two automobiles that Bierenbaum was driving at the time also yielded no results. IV, 3212, Oct. 23, 2000. 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. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. Leave to appeal that decision to the New York Court of Appeals was denied on May 30, 2006. Bierenbaum called her therapist and others on that day asking if they had seen her. He returned from New Jersey at approximately midnight. United States v. Langella, 776 F.2d 1078, 1083 (2d Cir.1985) (citing Lovasco, 431 U.S. at 790); accord United States v. Cornielle, 171 F.3d 748 (2d Cir.1999). The trial court permitted this testimony as background evidence of the state of the marriage and Katz's state of mind, and Bierenbaum's motive, intent and identity. 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. February 22, 2008. Strickland, 466 U.S. at 689 (citations and internal quotation marks omitted). An inspector for the Federal Aviation Administration testified that in his opinion a pilot could singlehandedly dispose of something from the plane without a great deal of difficulty. He contends that the videotapes lacked any foundation in the evidence and were based on speculation. is dean and Professor of Medicine for the College of Medicine at Charles R. Drew University of Medicine and Science. Anyone can read what you share. 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 ). In their last telephone conversation, Katz told DeCesare that she planned to ask Bierenbaum for a divorce, and that she had secretly borrowed $10,000.00 and put it in a safe deposit box to pay for a year of graduate school. Trial Tr. Bierenbaum, 748 N.Y.S.2d at 583-84. Bierenbaum, currently a resident of Grand Forks, N.D., faces amaximum term of 25 years to life in prison when he is sentencedNov. Dr. Robert Biernbaum is a Emergency Medicine Physician in Victor, NY. '', See the article in its original context from. He has 26 years of experience. If you are uninsured or underinsured, or need a referral to a doctor or dentist, call our Affordable Health Line at 585-328-7000. One recent morning at Pietsch's airfield, where Dr. Bierenbaum spent hours tinkering with his plane and teaching flight safety for the Federal Aviation Administration, mechanics and pilots grounded by fog were eating apple pie. To Karnofsky Bierenbaum speculated that Katz was in a fugue state or that she had run off with someone to the Caribbean. 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). To his friend he related that he and Katz had an argument that morning and that she had left the apartment to sunbathe in Central Park wearing shorts, sandals and a halter top. Location Comments: We're glad you're checking out Trillium Health. Dr. Biernbaum graduated from the University of New England College of Osteopathic Medicine in 1997. The police report also stated that Katz phoned Segalas in June 1985 and asked him to examine some cocaine she had bought, because she thought she had received a short amount. Failure to cross-examine witness Anthony Segalas concerning Katz's use of cocaine. 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. 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. He'd done it in the past. The state court concluded therefore that defense counsel was not ineffective for failing to move to dismiss for pre-indictment delay. Counsel suggested in his opening statement that You will also learn that she had a drug issue and you will learn at least one of the lovers Gail Katz Bierenbaum took behind Dr. Bierenbaum's back was also someone she shared drugs with, and you will learn it from his own testimony. Trial Tr. He was awaiting trial at his parents' home in East Orange, N.J., while his wife and daughter were in Pittsburgh. If the jury concluded beyond a reasonable doubt that Bierenbaum committed the murder, the jurors would not have harbored a reasonable doubt that it occurred in the apartment. 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. 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. Here, Bierenbaum expressly invoked the Confrontation Clause to both appellate courts. Bierenbaum had graduated from medical school in 1978, and was a surgical resident at Maimonides Medical Center in Brooklyn, New York. He recalled that when David Berkowitz (later known as Son of Sam) spent time at the Minot military base, animals in the area turned up mutilated. Doctoral Student: Professors are approachable and dedicated, as well as being experts in their respective fields. He did not see her return. WebMD does not provide medical advice, diagnosis or treatment. 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. 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. Please enter a valid 5-digit Zip Code. 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. 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. Bierenbaum told Caruana that he had hired a private investigator who had found evidence that Katz was in California. 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. ''I feel grief, like someone has died,'' he said. Edgar Rivera told the police that he did not remember seeing Katz on July 7. 3. In his opening statement counsel told the jury You will also learn that the police conducted a forensic examination of the doctor's apartment, the doctor's car, his friend's car that he borrowed some time that weekend, the airplane and found no evidence of blood or any other biological determinations because this case also turns on the lack of evidence. Id. It is not offered for such a purpose and it must not be considered by you for such a purpose. 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 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. vol. USC's Keck School of Medicine and UCI's Susan and Henry Samueli College of Health Sciences . Bierenbaum's petition for a writ of certiorari to the United States Supreme Court was denied on October 6, 2003. [T]o qualify as an adjudication on the merits, a state court decision need not mention a particular argument or explain the reasons for rejecting it. Dallio v. Spitzer, 343 F.3d 553, 560 (2d Cir.2003); see also Brown v. Artuz, 283 F.3d 492, 498 (2d Cir.2004) (finding that Sixth Amendment claim was adjudicated on the merits when state court dismissed it by stating defendant's remaining contentions are without merit.). Katz was a graduate student pursuing a Ph.D. degree in clinical psychology at Long Island University. This was not the first time Bierenbaum had choked her, but it was the first time that she lost consciousness. Mr. Berg recalls it as the most remarkable experience of his life, one that ''fulfills a person's reason for being here.''. 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. Dr. Kenneth Feiner developed a romantic relationship with Katz in the months prior to her disappearance. As of 2002 when his claim was adjudicated on the merits, and 2003 when his conviction became final, Ohio v. Roberts governed his claim. Dr. Bierenbaum specializes in lung cancer, gastrointestinal cancers, and myelodysplasia. Robert Bierenbaum, a former plastic surgeon who was convicted of murdering his wife in 2000, finally confessed to killing her and throwing her body out of an airplane after more than three decades of maintaining his innocence. 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. See Hemstreet v. Greiner, 491 F.3d 84, 90 (2d Cir.2007). A strong piece of the defense was the fact that there was no physical evidence to link Bierenbaum to the crime.