The trial judge denied the motion, but offered to tell the jury that Bierenbaum had no legal obligation to allow a search of his apartment, that he had a right to act on advice of counsel, and that the jury should draw no negative inference from that; but that in fact the apartment was not fully searched. TermsPrivacyDisclaimerCookiesDo Not Sell My Information, Begin typing to search, use arrow keys to navigate, use enter to select, Stay up-to-date with FindLaw's newsletter for legal professionals. Of course, there is another explanation for what drew Dr. Bierenbaum here: the changes in medicine that have allowed the Trinity Health Center, where he worked, to become a regional hub. During that period Caruana and Bierenbaum discussed Katz's disappearance. She heard nothing more. He received his. 2120, 2008 WL 515035 (S.D .N.Y. This was the same year that a partial female body washed ashore in Staten Island, New York. Ive waited for that sound a long time.. The Confrontation Clause of the Sixth Amendment to the United States Constitution states: in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. U.S. Const. June Sherman lived directly below the Bierenbaum apartment. is dean and Professor of Medicine for the College of Medicine at Charles R. Drew University of Medicine and Science. To show ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), Bierenbaum must (1) demonstrate that his counsel's performance fell below an objective standard of reasonableness and (2) affirmatively prove prejudice arising from counsel's allegedly deficient representation. Brown v. Greene, 577 F.3d 107, 110 (2d Cir.2009) (quoting Carrion v. Smith, 549 F.3d 583, 588 (2d Cir.2008)). In a December parole hearing, however, Bierenbaum,. . The defense, knowing that the alternate scenarios for Gail Katz's death had little in the way of factual support, apparently chose to cast all of the scenarios-the prosecution's included-as merely theories, which could not be proven beyond a reasonable doubt. He has 26 years of experience. 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. 06 Civ. Dr. Bierenbaum graduated from the Albany Medical College in 1978. at 583. Counsel's theory was that Katz left the apartment on Sunday, and met with foul play after she left. Today, local rumor has it, the federal witness protection program relocates people here. 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)). All rights reserved. If you wanted to start a new life, free of reproach or inquiry, this remote prairie town of 35,500 might be the place. Bierenbaum said he would get back to him, but did not. Katz moved out and lived for a time with her grandfather. On October 17, 1986 she learned that Bierenbaum had rented an airplane from Mac Dan Aircraft Rental at Caldwell Airport in Fairfield, New Jersey on July 7, 1985, the day Katz disappeared. See Davis, 547 U.S. at 824 (holding that limiting the Confrontation Clause to testimonial hearsay is clearly reflected in the text of the constitutional provision); United States v. Feliz, 467 F.3d 227, 232 (2d Cir.2006) ([A]fter Crawford and Davis, the inquiry under the Confrontation Clause is whether the statement at issue is testimonial.); accord United States v. Williams, 506 F.3d 151, 156 (2d Cir.2007). Dr. Jason Bierenbaum is an oncologist in McKeesport, Pennsylvania and is affiliated with multiple hospitals in the area, including UPMC Presbyterian Shadyside and UPMC East. I, 1889. 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 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. Katz did not keep her regularly scheduled psychotherapy appointment on July 8. 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. Friends and family posted pictures of Katz in the neighborhood. 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. 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). That is one of the theories that could have happened. 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). For more information, The fact that this defendant allegedly committed a prior bad act is no proof whatsoever that he possessed a propensity or disposition to commit the crime charged in this indictment or any other crime. You'll find that we're more than just a clinic or a service provider. Bierenbaum, currently a resident of Grand Forks, N.D., faces amaximum term of 25 years to life in prison when he is sentencedNov. By last December, the life he had built was over. Kasenbaum testified that Katz told her she was having an affair with a colleague at a hospital where she was interning. In a state that averages two people per square mile, it is more important to embrace newcomers than to fuss with details about the past. Robert "Rob" Biernbaum, D.O. 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 told O'Malley that Katz was depressed and suicidal. See Hemstreet v. Greiner, 491 F.3d 84, 90 (2d Cir.2007). He lied to both officers, telling both of them that he had remained in the apartment until approximately 5:30 p.m. when he left for the party in New Jersey. ''We worry about today and tomorrow here, not last week.''. 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. 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. He did not find anything. 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. 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. Detective O'Malley testified that Bierenbaum told him he'd made a mistake, and that Rivera wasn't sure when he'd seen 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. It was consistent with that theory to concede her death on July 7. 2120, 2008 WL 515035 (S.D.N.Y. The defendant and his attorney stopped the cops from doing a complete forensic search on the apartment. 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. Albany Medical College ; It is not the first time an innocent drug buyer gets killed in the course of a drug deal It was a different city then, a dangerous place, Gail Katz Bierenbaum may very well have found by virtue of some of her own behavior danger. 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. Dr. Baran denied that she'd had such a conversation with Bierenbaum and denied that Katz was suicidal. vol. 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. He stated that he nevertheless attempted to look for any evidence that a crime had been committed in the apartment, that he discovered no such evidence, but that he had not conducted a detailed forensic search. Dr. Yvette Feis, Katz's former professor and friend, testified that Katz told her she was looking for other sexual partners. McCullough testified that Katz told her that her husband had gotten angry at her and choked her because she had been smoking a cigarette. The motion was denied. In fact, the police were not permitted to conduct a forensic search of the apartment. 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. She states that on the morning Katz disappeared, Katz was screaming at someone. gofrom the doctor to the pharmacist,primary care physician to a specialist, or a radiology center to the emergency room. Cardiovascular Disease, Internal Medicine. To Karnofsky Bierenbaum speculated that Katz was in a fugue state or that she had run off with someone to the Caribbean. It ranks in the top 20 in the United States for both research and primary care. 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). 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. 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. It is possible. His arrest came nearly 15. Nontestimonial statements therefore do not implicate the Confrontation Clause. WebMD does not provide medical advice, diagnosis or treatment. 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. Sergeant Matthew Rowley of the New York police department's Aviation Unit executed three flights in a Cessna 172 from Caldwell Airport on October 11, 2000, during the trial. Please try again. CALABRESI, Circuit Judge, filed a concurring opinion. At 4:30 p.m. he was already in New Jersey, flying his rented airplane. 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. Katz cooked steaks that night and they had a romantic candlelight dinner. Surgery, Internal Medicine. The passage quoted above demonstrates that the Appellate Division found particularized guarantees of trustworthiness in the challenged statements. ''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. Decker, 912 N.E.2d at 1043 (quoting People v. Taranovich, 335 N.E.2d 303, 306 (N.Y.1975)). [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). ''Most people don't know that Minot, North Dakota, is on the face of the map, so why come here?'' Dr. Kenneth Feiner developed a romantic relationship with Katz in the months prior to her disappearance. Bierenbaum had been out on $500,000 bail. 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. The state court's determination that the cross-examination of Segalas was not constitutionally deficient was not an unreasonable application of Strickland. The district court's denial of petitioner's application for a writ of habeas corpus is affirmed. Local doctors here studied the demographics, and did not think a plastic surgeon would arrive until at least 2005. Who would come willingly to a place where many professionals -- particularly doctors who draw patients from the surrounding 100,000 square miles -- must fly single-engine planes to work? About Robert Bierenbaum . Las mejores ofertas para 1975 Foto de prensa del Dr. Robert L. Tuttle, Facultad de Medicina de la Universidad de Texas estn en eBay Compara precios y caractersticas de productos nuevos y usados Muchos artculos con envo gratis! 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. Though he doesn't like to admit it, Mike Berg, the friend from the Rotary Club, is angry. The jury also learned that a Cessna 172 Skyhawk, the airplane that Bierenbaum rented, is a stable, easy-to-handle four passenger aircraft. 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. 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. Contact us. We therefore conclude that the state courts were fairly alerted to the constitutional claim, Bierenbaum has exhausted his available state remedies with respect to the claim, and we may reach the merits of the claim. Strickland, 466 U.S. at 689 (citations and internal quotation marks omitted). Janet and the baby are fine. The next morning he went to work, and that evening reported Katz missing. Bierenbaum then filed a petition for writ of error coram nobis in the Appellate Division contending that appellate counsel had provided ineffective assistance. Wiese advised her to leave immediately. 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. 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. We review de novo a district court's decision to deny a petition for a writ of habeas corpus. 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 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. Pro. On February 25, 2008, the district court denied the petition without conducting an evidentiary hearing. We're a team that goes into neighborhoods working to stop the spread of HIV through education, prevention, and testing events. Please enter a valid 5-digit Zip Code. 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. Upon selling their Minot condominium, Dr. Bierenbaum took to sleeping on a folding cot in the hangar beside his airplane and showering in the hospital where he still treated patients. Leave to appeal to the New York Court of Appeals was denied on March 10, 2003. It was not objectively unreasonable to do so. Robert previously worked for MultiCare Health System, an organization with a fast-paced trauma center, four community hospitals, and many neighborhood clinics based in Tacoma, Washington. 5. 1200 S Columbia Rd, Grand Forks, ND, 58201 (701) 780-5260 OVERVIEW Dr. Bierenbaum graduated from the Albany Medical College in 1978. 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. Robert Hickman, MD, is a board-certified physician providing primary care through One Medical, an independent, membership-based practice with an annual fee. Looking back, people see sinister clues in the fact that his socks were mismatched, his airplane a mess. Some say that doctors come here fleeing lawsuits, bouts with drugs and alcohol and strange gaps in their resumes. No one, other than Bierenbaum, reported seeing Katz after July 6. The decision not to call a particular witness is typically a question of trial strategy. Greiner v. Wells, 417 F.3d 305, 323 (2d Cir.2005) (quoting United States v. Luciano, 158 F.3d 655, 660 (2d Cir.1998) (per curiam)). None of the alleged errors, individually or collectively, amount to constitutionally deficient representation. 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 another conversation Katz told DeCesare that she and Bierenbaum had discussed the Claus von Bulow case, and that Bierenbaum had said the problem with the case was that von Bulow left evidence and that he would leave no evidence. 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. Katz was a graduate student pursuing a Ph.D. degree in clinical psychology at Long Island University. The prosecution also produced the testimony of Karen Caruana, a woman with whom Bierenbaum had a brief affair shortly after Katz disappeared. DeCesare said that Bierenbaum often mentioned water, that Katz was outside cooling off.. Davis had been in a bagel shop in Manhattan on Second Avenue in the 80's on the afternoon of July 7, 1985, and he noticed an attractive woman wearing a distinctive t-shirt with a non-English word on it. ''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. All this means that the decision of the district court is properly affirmed. In the four to six months before she disappeared she told her therapist that she was looking for an apartment so that she could separate from Bierenbaum. He described her to the jury as deeply tanned, about five foot one, with a well-developed body. Robert BIERENBAUM, Petitioner-Appellant, v. Harold D. GRAHAM, The Superintendent of Auburn Correctional Facility, Andrew Cuomo, Attorney General State of New York, Respondents-Appellees. Dr. Robert Biernbaum is a Emergency Medicine Physician in Victor, NY. In fact, Bibb said, Bierenbaum knew very well that his wife wasdead. 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.