Investigators with the Manhattan district attorney's office arrested him in Minot, and gave him 48 hours to return to New York and surrender. Under New York law, the prosecution must establish good cause for extended delay, but a determination made in good faith to delay prosecution for sufficient reasons will not deprive defendant of due process even though there may be some prejudice to defendant. People v. Decker, 912 N.E.2d 1041, 1042 (N.Y.2009); see N.Y. Const. 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.'' 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. Bierenbaum's attorney gave permission for the police to search for fingerprints and anything that might help them identify Katz. 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. Robert moved to Las Vegas, Nevada in 1989 and set up a medical practice in the city. Regardless of whether counsel's performance was deficient in failing to secure Sherman's testimony, Bierenbaum cannot show prejudice. 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. Though Katz's body has never been found, Bierenbaum was found guilty of . See Bierenbaum v. Graham, No. Detective O'Malley testified that Bierenbaum told him he'd made a mistake, and that Rivera wasn't sure when he'd seen Katz. To Karnofsky Bierenbaum speculated that Katz was in a fugue state or that she had run off with someone to the Caribbean. None of the alleged errors, individually or collectively, amount to constitutionally deficient representation. [Bierenbaum] tells Karen Caruana, You know the cops searched my apartment. The prosecution successfully argued that counsel had opened the door to allow testimony from Detective Dalsass that Bierenbaum's attorney had prevented the police from conducting a warrantless forensic search of the apartment. Bierenbaum argued undue pre-indictment delay to the state court in his motion to set aside the judgment. 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. 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. Defense counsel did not call two individuals whom Bierenbaum contends witnessed Katz leaving the apartment and the building in accordance with his narrative of events on July 7, 1985. 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. 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. About Robert Bierenbaum . Please verify insurance information directly with your doctor's office as it may change frequently. Dr. Bierenbaum specializes in lung cancer, gastrointestinal cancers, and myelodysplasia. Dr. Robert Biernbaum is a Emergency Medicine Physician in Victor, NY. School of Medicine - Loma Linda University. ''He refused to talk to us,'' Mr. Maixner said. The motion was denied. Trial Tr. Rochester RHIO makes your information available wherever you That involved advice of counsel. He said that he had called Katz's mother and two of her friends to see if she was there. 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.) But his life in Minot was already fraying. 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. She kept an appointment with her hairdresser, and met with a close friend that afternoon for a couple of hours. Bierenbaum argues that even if it were within the range of reasonable strategic choices to concede that Katz was dead, it was not reasonable to concede that she died on the Sunday she disappeared. Dalsass had numerous telephone calls from members of Katz's family during that same time period. 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 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 ). You'll find that we're more than just a clinic or a service provider. Katz told DeCesare that she was unconscious, and that Bierenbaum had to call 9-1-1 for assistance. Certain of these witnesses also testified that Katz told them she had received a letter from Bierenbaum's therapist warning her that Bierenbaum was a danger to her, and that Katz intended to threaten Bierenbaum with disclosure of this letter. Learn more about FindLaws newsletters, including our terms of use and privacy policy. A strong piece of the defense was the fact that there was no physical evidence to link Bierenbaum to the crime. The videotapes were subsequently offered into evidence without objection. participates with the Rochester RHIO. Gail Katz and Robert Bierenbaum were married in August 1982. Dr. Leigh McCullough, Katz's employer in the fall of 1983, noticed bruises on Katz's neck one day. Before leaving town, Dr. Bierenbaum stopped in at Pietsch's to pay a bill. I add a few words because this case troubles me. The torso was ruled out as belonging to Ms. Katz-Bierenbaum, whose remains have never been found. The affair began while Bierenbaum was vacationing in South Hampton on Long Island during the month of August, and lasted about six weeks. Katz moved out and lived for a time with her grandfather. All rights reserved. vol. Robert "Rob" Biernbaum, D.O. Dr. Bierenbaum told locals that he loved his new town for being free of traffic and crime. Please enter a valid 5-digit Zip Code. In 1999 Bierenbaum was indicted and charged with murder in the second degree in her death. 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. Think about the defendant. When Rivera testified at trial, he stated that he could not remember anything about July 7, 1985. 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). And as always, patient privacy and confidentiality remain of the utmost importance. DeCesare testified that Katz told her that Bierenbaum had threatened to kill her if she left him. 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). 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. He returned from New Jersey at approximately midnight. O'Malley asked if Bierenbaum had ever hit his wife. ''Ten years ago we were a hospital, and now we're a health system,'' Schwann said, with 80 physicians, 7 community clinics and eye-care and mental-health programs. He requested an evidentiary hearing. ''The guy was super nice,'' said Jason Naylor, a fellow pilot. These included Ellen Schwartz, Francesca Beale, Katz's therapist Dr. Sybil Baran, Anthony Segalas and Kenneth Feiner. He has 45 years of experience. A few days before she disappeared, Katz told DeCesare that she had met someone in whom she was interested, and she wondered if DeCesare thought it would be all right if she brought him up to the apartment when Bierenbaum wasn't there. 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! 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. We review de novo a district court's decision to deny a petition for a writ of habeas corpus. Bierenbaum said no. I, 6. He knew in July of 1985, what it would take to kill her. To him, the case against Dr. Bierenbaum seems ''so over-circumstantial'' that he thinks maybe an appeal would succeed. Do Not Sell or Share My Personal Information. 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. Instead the People were allowed to offer such evidence or introduce such evidence solely as probative of or relevant to or to demonstrate defendant[']s intent[-]as they claim[-]to murder Gail Katz Bierenbaum as probative of his identity as the person they claim committed the murder and when they summed up to you and made their arguments, I allowed those arguments on those points. The state court's determination that the cross-examination of Segalas was not constitutionally deficient was not an unreasonable application of Strickland. visit www.rpcn.org. 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. Katz confided in McCullough that she was having difficulty in her marriage, and that she and Bierenbaum fought a lot. It was not unreasonable for the Appellate Division to conclude that the reliability of Katz's statements was amply supported. Id. That is not disputed. Contribute to our National Missing Person Day Fundraiser Home Pro. He didn't stop when he knew she was unconscious. I believe the representation given to Appellant by his trial counsel left a lot to be desired, though, for the reasons stated in Judge Sessions's opinion, it does not ultimately amount to constitutionally inadequate representation. 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. On February 25, 2008, the district court denied the petition without conducting an evidentiary hearing. 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. 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. He had blocked the police from searching their Manhattan apartment. Robert BIERENBAUM, Petitioner-Appellant, v. Harold D. GRAHAM, The Superintendent of Auburn Correctional Facility, Andrew Cuomo, Attorney General State of New York, Respondents-Appellees. His anger at his wife. 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. He completed his Residency in Emergency Medicine from Genesys Regional Medical Center. Janet and the baby are fine. ''I feel grief, like someone has died,'' he said. 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. Bierenbaum, 44, was charged Tuesday with murdering Katz, loading her body into his twin-engine plane and flying out over the Atlantic to dump her in a watery grave. 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. The passage quoted above demonstrates that the Appellate Division found particularized guarantees of trustworthiness in the challenged statements. See Feliz, 467 F.3d at 232. 06 Civ. In September 1986 Hope Martin, an investigator from the District Attorney's office, was assigned to investigate Katz's disappearance. ''He'd come up to you if he saw a mole, and he would touch it,'' Mr. Hussey said. Robert "Rob" Biernbaum, D.O. Dr. Prothrow-Stith is an internationally recognized public health leader, who since 2008 has advised top-tier healthcare, life sciences, academic and not-for-profit institutions on leadership and . Bierenbaum's counsel explained that he was concerned that a contemporaneous objection would have prompted the trial court to sum up in favor of the prosecution, in other words, to highlight for the jury the argument that counsel found objectionable. 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. 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. Location Comments: We're glad you're checking out Trillium Health. But last week, a Manhattan jury found Dr. Bierenbaum guilty of killing his first wife and dumping her body from an airplane. vol. The torso was ruled out as belonging to Ms. Katz-Bierenbaum, whose remains have never been found. The location you tried did not return a result. 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 didn't stop when he knew he was hurting her. 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. These are not the acts of a suicidalperson, she said. 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 faces 25 years to life and is to be sentenced on Nov. 20. 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. 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. He'd done it in the past. Sherman believed that Katz left the apartment when the door slammed. During the trial defense counsel unsuccessfully attempted to serve Sherman, who had moved to Arizona. 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)). The evidence at trial was set forth in detail in the district court's February 25, 2008 opinion, and we recount below only the evidence necessary to resolve the issues presented on appeal. He called Katz's mother to see if she had heard from Katz, and went to bed. ''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. As Dr. Bierenbaum's social efforts overcame the reserve of his new neighbors, his old neighbors were busy digging up his past. Katz asked Beale if she could move in with her. See Bierenbaum v. New York, 540 U.S. 821 (2003). It's still wrong and you didn't face it.'' One of his duties was to relieve the doorman at lunchtime. E.g., Henry v. Ricks, 578 F.3d 134, 137 (2d Cir.2009). View info, ratings, reviews, specialties, education history, and more. 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. She stated that he told her this before the end of September. Dr. Roberta Karnofsky, an anesthesiologist, had a year-long relationship with Bierenbaum beginning in fall 1985, while she was a medical student under his supervision. If the jury harbored a reasonable doubt concerning Bierenbaum's guilt, an instruction on jurisdiction would not have assisted the defense. 2254. We've now expanded our services to include comprehensive medical care for HIV negative and LGBT communities. 2254(e)(1); see Drake v. Portuondo, 553 F .3d 230, 239 (2d Cir.2009). Defense counsel did not object to the instruction or request a stronger one. 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. 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. Pablo Alvarez was employed at the apartment building in 1985. As physician and friend Marvin proved himself a real . Dr. Bierenbaum carried on as a good citizen, writing an article in The Grand Forks Daily Herald about how to avoid snowblower injuries. 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. 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. ''Most people don't know that Minot, North Dakota, is on the face of the map, so why come here?'' 2005 - 2023 WebMD LLC. He works in Grand Forks, ND and specializes in Surgery and Internal Medicine. 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. RochesterHealth.com is a nonprofit 501(c)(3) community-centered website serving as a connection to Rochester-area healthcare resources. Bierenbaum had contacted O'Malley on July 10 to inquire about the progress of the investigation. He advised O'Malley that their building doorman, Edgar, had seen Katz leave at about 11 a.m. on July 7. Forensic tests of two automobiles that Bierenbaum was driving at the time also yielded no results. At that time the police had not searched his apartment or car. 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. 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. Dalsass asked Bierenbaum to narrate specifically and exactly how he spent the weekend that Katz disappeared. Bierenbaum had graduated from medical school in 1978, and was a surgical resident at Maimonides Medical Center in Brooklyn, New York. She wanted to know whether Bierenbaum had flown an airplane on the day of his wife's disappearance. First of all, it is not disputed by us that Gail Katz Bierenbaum is dead. The Appellate Division found the error unpreserved, and declined to review it. Decker, 912 N.E.2d at 1043 (quoting People v. Taranovich, 335 N.E.2d 303, 306 (N.Y.1975)). 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. 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. Here, Bierenbaum expressly invoked the Confrontation Clause to both appellate courts. Dr. Robert Bierenbaum is a trained pilot serving 20 years to life in prison for the 1985 murder of his wife, Gail Katz. Segalas said she is the one who made the connection. Failure to move for dismissal on the ground of insufficient evidence of specific intent to kill. 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. Detective O'Malley testified that in their first conversation Bierenbaum told him that a doorman named Edgar had seen Katz leave the building on July 7. The email address cannot be subscribed. Leave to appeal to the New York Court of Appeals was denied on March 10, 2003. 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. This conclusion was neither contrary to nor an unreasonable application of the Supreme Court's Confrontation Clause precedent in 2002 and 2003. DNA tests were not available at the time, but authorities believed that the remains were Gail's after conducting x-ray exams on the corpse. We're a community of medical and social service professionals who meet patients and clients in a healing and affirming environment where they can feel supported, cared for, and cared about. Law 290.10[1]. art. We're a team that goes into neighborhoods working to stop the spread of HIV through education, prevention, and testing events. O'Malley met with Bierenbaum on the 13th and requested details of the previous weekend. Doctor of Osteopathic (DO) The petition was denied on March 9, 2006. He also was the executive responsible for quality measures and meaningful use. IV, 3009-10, Oct. 18, 2000. 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. 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. 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). In fact, Bibb said, Bierenbaum knew very well that his wife wasdead. On July 14, Dalsass met with Bierenbaum, his father and Katz's parents. 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. Now we will tell you that the evidence will also show that she is dead. How close up you are with a person that you are choking Strangulation is up close and personal. Bierenbaum's only witness was Joel Davis, who saw a poster of the missing Katz and reported sighting her on a Manhattan street on the afternoon of Sunday, July 7. Baran testified that she never told Bierenbaumthat. Katz cooked steaks that night and they had a romantic candlelight dinner. 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. NEW YORK Dr. Robert Bierenbaum maintained his innocence in 2000 as he was tried and convicted of killing his first wife 15 years before. Dalsass testified that Bierenbaum's attorney gave permission for the police to conduct a limited search for items that might help to identify Katz. Bibb said Bierenbaum put his wifes corpse in a large duffelbag, drove it to a New Jersey airport, took the body up in a Cessna172 and dropped it into the ocean somewhere between Montauk, onLong Island, and Cape May, N.J. 24/7 coverage of breaking news and live events. 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. 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 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. 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.