Failure to properly object to the admission of the videotaped demonstration. McCullough testified that Katz told her that her husband had gotten angry at her and choked her because she had been smoking a cigarette. provider will be able to view your information so they can provide the most informed care and treatment. 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. ''He refused to talk to us,'' Mr. Maixner said. People here were on their guard at first because he dressed differently, had longer hair and a ''weird intensity'' about him. 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. Dalsass asked Bierenbaum to narrate specifically and exactly how he spent the weekend that Katz disappeared. 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. Katz did not keep her regularly scheduled psychotherapy appointment on July 8. 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. Dr. Robert Bierenbaum | Grand Forks, ND | Surgery | Vitals 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.'' 5. Bierenbaum's petition for a writ of certiorari to the United States Supreme Court was denied on October 6, 2003. Bierenbaum said no. The location you tried did not return a result. Sherman's testimony would not have undermined confidence in the jury's guilty verdict. 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. Over the years between Katz's disappearance and his trial for her murder, Bierenbaum offered various accounts of his activities and various theories concerning her whereabouts. Under New York law, [a] person is guilty of murder in the second degree when [w]ith intent to cause the death of another person, he causes the death of such person N.Y. She provided a picture of Katz from the summer of 1985, and described her as less than five foot three, weighing approximately 110 pounds, with an A-cup bra size. Dr. Robert Bierenbaum, Surgery | Grand Forks, ND | WebMD There was evidence that Bierenbaum regularly carried heavy duffel bags. Your recollection controls. 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. 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. If the jury harbored a reasonable doubt concerning Bierenbaum's guilt, an instruction on jurisdiction would not have assisted the defense. About three weeks after Katz disappeared, Bierenbaum began an affair with Karen Caruana, a nurse educator at Maimonides Medical Center where Bierenbaum was a surgical resident. The videotapes were subsequently offered into evidence without objection. Rochester, NY - Trillium Health, a community health center with an emphasis on affordable health care and located in downtown Rochester, announced the appointment of Robert "Rob" Biernbaum, D.O. 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. In the week after Katz was reported missing, Dalsass left several telephone messages for Bierenbaum, none of which were returned. ABC's '20/20' program to explore story of former Grand Forks surgeon Leave to appeal that decision to the New York Court of Appeals was denied on May 30, 2006. Dale Maixner, special agent with the North Dakota Bureau of Criminal Investigations, has another theory: that he was systematically building an image as a person incapable of murder. 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. Though the five-block downtown area boasts a jail, a courthouse and two competing hospitals, Minot (pronounced MY-not) has a desperate need for people and talent. All rights reserved. 2254. Katz cooked steaks that night and they had a romantic candlelight dinner. After Bierenbaum's direct appeal was concluded, he filed a motion with the trial court to set aside the judgment on the grounds that trial and appellate counsel had rendered ineffective assistance of counsel. He didn't stop when he knew she was unconscious. Bierenbaum called her therapist and others on that day asking if they had seen her. 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. Some say that doctors come here fleeing lawsuits, bouts with drugs and alcohol and strange gaps in their resumes. Her body was never found. 1975 Foto de prensa del Dr. Robert L. Tuttle, Facultad de Medicina de Katz told her that the night before she took her Graduate Record Exam, Bierenbaum choked her to unconsciousness because she smoked a cigarette. [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). Doctoral Student: Professors are approachable and dedicated, as well as being experts in their respective fields. 1200 S Columbia Rd, Grand Forks, ND, 58201 (701) 780-5260 OVERVIEW Dr. Bierenbaum graduated from the Albany Medical College in 1978. 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. Bierenbaum said that she had gone out earlier in the day and had not returned to their apartment. CALABRESI, Circuit Judge, filed a concurring opinion. 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. 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. Dr. Robert Biernbaum, DO | Victor, NY | Emergency Medicine Physician June Sherman lived directly below the Bierenbaum apartment. Under the circumstances, it was reasonable for defense counsel not to call Alvarez. It was consistent with that theory to concede her death on July 7. It was not unreasonable for the Appellate Division to conclude that the reliability of Katz's statements was amply supported. Id. 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. He returned from New Jersey at approximately midnight. O'Malley asked if he had ever choked his wife to the point of unconsciousness, and Bierenbaum said that he didn't want to speak about that. DeCesare said that Bierenbaum often mentioned water, that Katz was outside cooling off.. Loma Linda, CA . 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). Prior to trial Bierenbaum's attorney moved to dismiss the indictment, contending that the evidence presented to the grand jury failed to prove that New York had jurisdiction to prosecute him for the murder, because assuming that Katz was dead, there was no evidence that her death occurred in New York. III, 2820, Oct. 12, 2000. 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. ''. Baran also noted that Katz-Bierenbaum had been apartmenthunting, had gotten a manicure and had bought birth control devicesjust before she vanished. 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. Bierenbaum had contacted O'Malley on July 10 to inquire about the progress of the investigation. 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. 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. February 22, 2008. 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. Albany Medical College ; Few questioned Dr. Bob, as they called him, who was convicted last week of murdering his first wife. Dr. Baran denied that she'd had such a conversation with Bierenbaum and denied that Katz was suicidal. Defense counsel did not object to the instruction or request a stronger one. For more information, go to FindLaw.com Free, trusted legal information for consumers and legal professionals, SuperLawyers.com Directory of U.S. attorneys with the exclusive Super Lawyers rating, Abogado.com The #1 Spanish-language legal website for consumers, LawInfo.com Nationwide attorney directory and legal consumer resources. As of 2002 when his claim was adjudicated on the merits, and 2003 when his conviction became final, Ohio v. Roberts governed his claim. At 4:30 p.m. he was already in New Jersey, flying his rented airplane. Before leaving town, Dr. Bierenbaum stopped in at Pietsch's to pay a bill. 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. ''I have no idea what you've done in the past, you have no idea what I've done,'' Mr. Hussey concluded last week, after the verdict, seated in a restaurant near Minot International Airport, which has one baggage carousel. Strickland, 466 U.S. at 689 (citations and internal quotation marks omitted). 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. 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. In Whorton v. Bockting, 549 U.S. 406, 421 (2007), the Supreme Court held that Crawford announced a new rule that would not apply retroactively on collateral review. Maryann DeCesare, a friend, testified that Katz told her that she was afraid of Bierenbaum's temper and that he had threatened her. 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. Robert "Rob" Biernbaum, D.O. The faculty-student ratio at . Only later would he learn what had happened. Grand Forks, ND 58201 . 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. '', 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. 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. 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. RochesterHealth.com is a nonprofit 501(c)(3) community-centered website serving as a connection to Rochester-area healthcare resources. Pro. Write a Review . 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. Regardless of whether counsel's performance was deficient in failing to secure Sherman's testimony, Bierenbaum cannot show prejudice. He received his. Wiese advised her to leave immediately. . Dr. Bierenbaum carried on as a good citizen, writing an article in The Grand Forks Daily Herald about how to avoid snowblower injuries. 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. School of Medicine - Loma Linda University. When You Have No Body: Corpus Delicti and the Bierenbaum Case ''Murderer'' is the word Ms. Katz-Bierenbaum's sister, Alayne Katz, consistently used to describe him. Dr. Robert Bierenbaum is a health care provider primarily located in Grand Forks, ND. 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). Doctor of Osteopathic (DO) Two or three months later Bierenbaum told another of Katz's friends, Maryann DeCesare, that he thought she was waitressing by a seaside community. Failure to request charge on territorial jurisdiction. And as always, patient privacy and confidentiality remain of the utmost importance. 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. Dalsass testified that Bierenbaum's attorney gave permission for the police to conduct a limited search for items that might help to identify Katz. (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). is dean and Professor of Medicine for the College of Medicine at Charles R. Drew University of Medicine and Science. 2023 Rochester Health, Currently accepting new patients at this location. 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. 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.'' With bitter winters and little company, residents here have little use for moral condemnation. Top Medicine Graduate Programs in the Los Angeles Area - Niche at 1889. I, 6. Robert Bierenbaum's Second Wife, Dr. Janet Chollet, Supported Him at '' The next day, the news hit that he was in New York and under arrest for murder. 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. 06 Civ. 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). 2. Alayne Katz testified that her sister told her about a letter she had received from Bierenbaum's psychiatrist warning her about Bierenbaum's potential for dangerousness and advising her to move out. 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). Although there was no evidence to that effect, defense counsel did not object. Ex-surgeon confesses throwing wife's body from airplane in 1985 She wanted to know whether Bierenbaum had flown an airplane on the day of his wife's disappearance. 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. Counsel's theory was that Katz left the apartment on Sunday, and met with foul play after she left. 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. DeCesare testified that Katz told her that Bierenbaum had threatened to kill her if she left him. 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. They later moved to. Katz was a graduate student pursuing a Ph.D. degree in clinical psychology at Long Island University. TimesMachine is an exclusive benefit for home delivery and digital subscribers. He did not see her return. He works in Grand Forks, ND and specializes in Surgery and. O'Malley asked if Bierenbaum had ever hit his wife. N E W Y O R K, Oct. 24, 2000 -- Dr. Robert Bierenbaum, a plastic surgeon who wascharged with killing his wife 15 years ago and dropping her bodyinto the ocean from an airplane, was convicted today ofsecond-degree murder. ''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. Dr. Robert Bierenbaum is a trained pilot serving 20 years to life in prison for the 1985 murder of his wife, Gail Katz. He said that he had called Katz's mother and two of her friends to see if she was there. On direct appeal, Bierenbaum contended that the trial court erroneously admitted videotapes, demonstrating how a pilot can, without assistance, place a flight bag loaded with one hundred ten pounds of weight into a Cessna 172, fly the plane over the ocean and push it out. 2254 in the United States District Court for the Southern District of New York. On appeal to the Appellate Division, First Department, Bierenbaum argued that his guilt was not proven beyond a reasonable doubt. Given that the testimony was independently admissible, and the trial court gave a curative instruction in connection with the improper closing argument, defense counsel's mistaken reference to a forensic search did not open the door to prejudicial comments. 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. Another lie was that her psychotherapist, Dr. Sybil Baran, hadtold Bierenbaum that his wife was suicidal and might have killedherself, Bibb said. See People v. Bierenbaum, 790 N.E.2d 281 (N.Y.2003). 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. 7. Loma Linda University . Healthcare DirectoryRobert M. Biernbaum DO - Rochester Health Please enter a valid 5-digit Zip Code. The Appellate Division did not explicitly address Bierenbaum's confrontation clause claim,1 and the Court of Appeals denied leave to appeal without explanation. Dr. Bierenbaum specializes in lung cancer, gastrointestinal cancers, and myelodysplasia. First of all, it is not disputed by us that Gail Katz Bierenbaum is dead. Claim your profile (701) 780-5260 . Over defense objection eleven witnesses-friends, relatives, colleagues and Katz's therapist-were permitted to testify about conversations they had with Katz between 1983 and 1985 in which she talked about the state of her marriage, her fear of Bierenbaum's temper, his controlling behavior, his threats, and an argument in 1983 during which he choked her to the point of unconsciousness. On February 25, 2008, the district court denied the petition without conducting an evidentiary hearing. Robert Bierenbaum (born July 22, 1955) is an American former plastic surgeon and convicted murderer. 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. Petitioner-Appellant Robert Bierenbaum was convicted after a jury trial of murder in the second degree, see N.Y. The search was thus limited to the scope of the permission given. He completed his Residency in Emergency Medicine from Genesys Regional Medical Center. He is a member of the UC San Diego Health Physician Network. Bierenbaum lists nine errors that he contends are objectively unreasonable: (1) failing to move to dismiss the indictment due to pre-trial delay; (2) conceding that Katz died on July 7, 1985; (3) opening the door to testimony and argument that Dr. Bierenbaum and his lawyer refused to consent to a forensic search of his apartment; (4) failing to call two witnesses who allegedly would have supported his claim that Katz left the apartment on the morning of July 7; (5) failing to cross-examine effectively a witness who minimized his use of cocaine with Katz; (6) failing to object to the admission of the videotaped demonstration of the prosecution's theory of how Bierenbaum disposed of his wife's body; (7) failing to move for a trial order of dismissal on the grounds of insufficient evidence of the element of intent to kill; (8) failing to make a timely objection to improper remarks in summation; (9) failing to request a jury charge on jurisdiction. 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. Failure to object to summation remarks. She kept an appointment with her hairdresser, and met with a close friend that afternoon for a couple of hours. 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. This Court granted a certificate of appealability on September 23, 2008. at 3107, Oct. 23, 2000. Segalas said she is the one who made the connection. The Appellate Division rejected these claims and affirmed the conviction on October 22, 2002. Leave to appeal to the New York Court of Appeals was denied on March 10, 2003. The torso was ruled out as belonging to Ms. Katz-Bierenbaum, whose remains have never been found. 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. Dr. Bierenbaum told locals that he loved his new town for being free of traffic and crime. 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. Bierenbaum then filed a petition for writ of error coram nobis in the Appellate Division contending that appellate counsel had provided ineffective assistance. Katz had an affair with Anthony Segalas, an investment banker, during the summer of 1984 and the spring of 1985. This was the same year that a partial female body washed ashore in Staten Island, New York. 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. Indeed, Bierenbaum does not argue to this Court (except parenthetically) that the challenged hearsay declarations were in fact unreliable. 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. [T]he question of whether a federal constitutional question was sufficiently asserted in state courts to form the basis of a federal habeas petition is a question of federal law which the federal courts must resolve for themselves. Acosta v. Artuz, 575 F.3d 177, 185 (2d Cir.2009) (quoting DiSimone v. Phillips, 461 F.3d 181, 189 (2d Cir.2006)).
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