It was not objectively unreasonable to do so. 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. She kept an appointment with her hairdresser, and met with a close friend that afternoon for a couple of hours. Katz cooked steaks that night and they had a romantic candlelight dinner. In determining whether prosecution has been unduly delayed, a New York court will balance five factors: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay.. Bierenbaum argues that the Dalsass testimony was inadmissible absent defense counsel's remark, and the prosecution could not therefore have used it in summation. '', 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. His specialties include Emergency Medicine, Family Medicine. Prior to that date he had not been permitted to enter the apartment. 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. We disagree. 5. There was evidence that Bierenbaum regularly carried heavy duffel bags. 2254(b)(1)(A). 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. Bierenbaum, 748 N.Y.S.2d at 583-84. Doctor of Osteopathic (DO) Defense counsel did not move to dismiss the indictment for undue delay. But last week, a Manhattan jury found Dr. Bierenbaum guilty of killing his first wife and dumping her body from an airplane. Ive waited a very,very long time for this day. Defense counsel decided not to call Alvarez. Surgery, Internal Medicine. He also was the executive responsible for quality measures and meaningful use. '' The next day, the news hit that he was in New York and under arrest for murder. IV, 3009-10, Oct. 18, 2000. 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. The conviction leaves the people of Minot with a question. I, 6. 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. Robert "Rob" Biernbaum, D.O. 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). The trial court gave a limiting instruction to that effect after each witness's testimony and at the close of trial, and admonished the jury that they were not to take this testimony as proof that Bierenbaum had acted in accordance with the statements, or as evidence of propensity. Dalsass asked Bierenbaum to narrate specifically and exactly how he spent the weekend that Katz disappeared. The RHIO icon appearing in a provider's directory listing indicates the provider In summation the prosecution improperly argued that Bierenbaum and his attorney prevented the police from conducting a complete search. 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. On March 17, 2006, Bierenbaum filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. Id., 744 N.E.2d at 131 (citations, internal quotation marks and ellipses omitted). 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. ''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. Image Credit: Stephanie Youngblood/ ABC News 20/20. 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. Please enter a valid 5-digit Zip Code. 2120, 2008 WL 515035 (S.D.N.Y. Dr. Sybil Baran, Katz's therapist, testified that Katz was afraid of Bierenbaum's anger. 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. Robert Bierenbaum (born July 22, 1955) is an American former plastic surgeon and convicted murderer. Bierenbaum does not dispute that Alvarez told the authorities in July 1985 that he did not recall seeing Katz on July 7, and that he did not remember how she was dressed the last time he did see her. Dr. Robert Bierenbaum . Dr. Robert Biernbaum is a Emergency Medicine Physician in Victor, NY. NEW YORK Dr. Robert Bierenbaum maintained his innocence in 2000 as he was tried and convicted of killing his first wife 15 years before. 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. 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. Failure to cross-examine witness Anthony Segalas concerning Katz's use of cocaine. The story of Dr. Robert Bierenbaum, a plastic surgeon who practiced in Grand Forks and Minot and later was convicted for the murder of his wife in their Manhattan apartment, will air in a two-hour . Wiese advised her to leave immediately. 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. 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. He was convicted in October 2000 of having murdered his estranged wife, Gail Katz-Bierenbaum 15 years earlier in their Manhattan apartment on July 7, 1985. Grand Forks, ND 58201 . Katz told DeCesare that she had gone out on the terrace of their apartment to smoke a cigarette, where he confronted her and choked her. 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. 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. According to his affidavit, on the Sunday before Katz's parents and the police inquired about her, he relieved the doorman, Edgar Rivera, at approximately 11:30 a.m. At that time he saw Katz leave the front entrance of the building wearing shorts and a t-shirt. Denise Kasenbaum, a friend, testified that Katz had told her there were problems in the marriage, incidents of violence, that Bierenbaum was very controlling, and that she was not happy. vol. I join Judge Sessions's opinion fully because I believe it to be correct on the law. Bierenbaum said that she had gone out earlier in the day and had not returned to their apartment. The Appellate Division analyzed the reliability of the challenged statements under the rule for determining reliable hearsay set forth by the New York Court of Appeals in Nucci v. Proper, 744 N.E.2d 128 (N.Y.2001): Reliability is the sum of the circumstances surrounding the making of the statement that render the declarant worthy of belief. Dr. Robert Bierenbaum had a second motive to murder his wife - she was threatening to expose him and his cardiologist father as Medicaid scammers, a witness told jurors yesterday. 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. This was not the first time Bierenbaum had choked her, but it was the first time that she lost consciousness. 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 defendant and his attorney stopped the cops from doing a complete forensic search on the apartment. 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. 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. 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). Bierenbaum claims that he was denied his Sixth Amendment right to effective assistance of counsel at trial, and that the admission at trial of numerous out-of-court statements made by the victim violated the Confrontation Clause of the Sixth Amendment. Jason Bierenbaum, MD, is a medical oncologist and hematologist at UPMC Hillman Cancer Center. The prosecution called Katz's sister Alayne as a rebuttal witness. 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. 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 faces 25 years to life and is to be sentenced on Nov. 20. (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). '', See the article in its original context from. It was not unreasonable for the Appellate Division to conclude that the reliability of Katz's statements was amply supported. Id. He works in Grand Forks, ND and specializes in Surgery and Internal Medicine. Bierenbaum told Karnofsky that the police had asked him if he had removed the apartment rug or had it cleaned, and that he had answered that he had not. School of Medicine - Loma Linda University. art. We've now expanded our services to include comprehensive medical care for HIV negative and LGBT communities. 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. 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. 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. 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. The Appellate Division ruled that the statements bore numerous hallmarks of reliability: She was speaking spontaneously; she repeated the statements separately to various people in her life; her statements about the troubled side of their marriage were a natural consequence of corroborated facts about their marriage; she was, by all indications, in good mental health; there appears no reason for her to have fabricated the matters she discussed at the time of her utterances; and her statements largely concerned private matters that some would be embarrassed or otherwise reluctant to disclose. Two or three months later Bierenbaum told another of Katz's friends, Maryann DeCesare, that he thought she was waitressing by a seaside community. Many of our partners in care are also providing services on site, just as they did before. He told Karnofsky that he had gotten into an argument with his wife one day, that she went to cool off in Central Park, that she had been seen one time around the area of Central Park, but had never been seen again. 2120, 2008 WL 515035 (S.D .N.Y. When the prosecution gave notice during trial that it had provided copies of the videotapes to the defense, counsel stated I suspect we'll object. The trial judge responded And I suspect I'll allow it. Trial Tr. 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. It was a reasonably defensible legal strategy to conclude that on the state of the evidence at trial the jury should be asked to make a choice between two, not three theories of the case. 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. Friends and family posted pictures of Katz in the neighborhood. 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. We need not address this argument because of our disposition of this issue under Roberts. It is possible. A strong piece of the defense was the fact that there was no physical evidence to link Bierenbaum to the crime. 7. TimesMachine is an exclusive benefit for home delivery and digital subscribers. 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. 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. She stated that he told her this before the end of September. Under the circumstances, it was reasonable for defense counsel not to call Alvarez. Leave to appeal that decision to the New York Court of Appeals was denied on May 30, 2006. Bierenbaum said he would get back to him, but did not. Looking back, people see sinister clues in the fact that his socks were mismatched, his airplane a mess. That is not disputed. 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. Thus, Bierenbaum's challenge to the admission of Katz's statements must be evaluated under Roberts. 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. Bierenbaum was charged with murder in the second degree in an indictment returned December 8, 1999. Chokes her much harder than when he had only strangled her to unconsciousness. 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. 1200 S Columbia Rd, Grand Forks, ND, 58201. The educational structure is rigorous, but the real draw of this school is the open and accepting atmosphere. 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. 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. The Appellate Division rejected these claims and affirmed the conviction on October 22, 2002. The decision not to call Alvarez was within the range of acceptable strategic and tactical alternatives. Luciano, 158 F.3d at 660. Being essentially softhearted, though, he e-mailed Dr. Bierenbaum before the trial to wish him good luck and got a brief response: ''Thanks. 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). Though he doesn't like to admit it, Mike Berg, the friend from the Rotary Club, is angry. He has 45 years of experience. (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. ''Most people don't know that Minot, North Dakota, is on the face of the map, so why come here?'' Katz was a graduate student pursuing a Ph.D. degree in clinical psychology at Long Island University. She heard nothing more. Learn more about FindLaws newsletters, including our terms of use and privacy policy. This conclusion was neither contrary to nor an unreasonable application of the Supreme Court's Confrontation Clause precedent in 2002 and 2003. He said, 'I just have a lot on my mind.' Randy Schwann, Trinity's marketing director, explained why Dr. Chollet and her husband, along with physicians from places like Walter Reed Army Medical Center and UCLA Medical Center, were recruited here. The prosecution argued:What does he do? Katz confided in McCullough that she was having difficulty in her marriage, and that she and Bierenbaum fought a lot. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. 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. 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. Assuming that Katz's statements were admitted for the truth of the matters asserted,2 they meet the Roberts standard for admissibility. Katz did not keep her regularly scheduled psychotherapy appointment on July 8. The motion was denied on September 6, 2005, and leave to appeal was denied on January 12, 2006. ABC's '20/20 portrays how Robert Bierenbaum did not seem affected by his wife Gail Katz's disappearance in July 1985. For more information, go to 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. 2005 - 2023 WebMD LLC. Bierenbaum had graduated from medical school in 1978, and was a surgical resident at Maimonides Medical Center in Brooklyn, New York.
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