vol. 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)). Moreover, at that point in the summation, the prosecuting attorney was cataloguing what he termed Bierenbaum's lies-to Dalsass, to O'Malley, to Caruana, and several other witnesses. 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. He knew in July of 1985, what it would take to kill her. We addressed this point in connection with counsel's mistake in referring to a forensic examination in his opening statement, and found no prejudice. It is possible. 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. In September Dalsass finally secured permission to search Bierenbaum's apartment. He also was the executive responsible for quality measures and meaningful use. Write a Review . Although the delay was substantial, Bierenbaum suffered no prejudice, and he was not incarcerated prior to trial. UC San Diego Health Physician Network is an alliance of health care providers based in San Diego, Riverside and Imperial counties. He works in Rochester, NY and 8 other locations and specializes in Emergency Medicine and Family Medicine. Im very relieved, said Alayne Katz. At 4:30 p.m. he was already in New Jersey, flying his rented airplane. Bierenbaum, 748 N.Y.S.2d at 583-84. Boys don't touch boys here.' 2254 in the United States District Court for the Southern District of New York. 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. That evening Bierenbaum filed a missing persons report indicating that when Katz was last seen she was wearing pink shorts and a white t-shirt. ''. Please verify insurance information directly with your doctor's office as it may change frequently. Bierenbaum told Feis that they had had an argument, that she had gone to Central Park and not returned, and that she was still missing when he returned from a family party in New Jersey. Dalsass had numerous telephone calls from members of Katz's family during that same time period. asked Stephanie, a bookkeeper in town who was treated by Dr. Bob and who asked that her last name not be used. Its tuition is full-time: $38,920 (in-state) and full-time: $51,175 (out-of-state). February 22, 2008. He did not see her return. In the 1920's, whiskey traffickers lived among the Lutheran churches and businesses. At the close of the prosecution's case, defense counsel move[d] for a trial order of dismissal of the single count of the indictment because the People failed to establish every element of the crime charged[,] and this case particularly in its circumstantial nature is insufficient to go forward for a jury resolution. Trial Tr. gofrom the doctor to the pharmacist,primary care physician to a specialist, or a radiology center to the emergency room. Friends and family posted pictures of Katz in the neighborhood. [Bierenbaum] tells Karen Caruana, You know the cops searched my apartment. Throughout the search for Gail Katz-Bierenbaum, her family said they found her husband decidedly unhelpful. 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. 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. Katz confided in McCullough that she was having difficulty in her marriage, and that she and Bierenbaum fought a lot. Sherman heard the noise of the high-heeled shoes, then she heard the door slam, and both the shouting and the sound of high heels on the floor stopped. Although Gail's family believed he was responsible for the disappearance, the police could not build a case for a long time as they lacked the body and concrete . 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. The Appellate Division rejected these claims and affirmed the conviction on October 22, 2002. 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. The defendant and his attorney stopped the cops from doing a complete forensic search on the apartment. He also devoted time to charitable . 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. He requested an evidentiary hearing. All rights reserved. In 1998 the investigation was reopened, and the body was exhumed and determined by DNA comparison not to be Katz. Loma Linda University . Pro. ''We worry about today and tomorrow here, not last week.''. DeCesare testified that Katz told her that Bierenbaum had threatened to kill her if she left him. 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)). That is not disputed. 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. 20 by Justice Leslie Crocker Snyder. '', See the article in its original context from. Feb. 25, 2008). Law 290.10[1]. 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. 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. 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. The prosecution also produced the testimony of Karen Caruana, a woman with whom Bierenbaum had a brief affair shortly after Katz disappeared. I, 1881, Oct. 2, 2000. He has 45 years of experience. Some in Minot now think of Dr. Bierenbaum's good works as an effort to expiate guilt. She states that on the morning Katz disappeared, Katz was screaming at someone. 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. 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. 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. Defense counsel did not move to dismiss the indictment for undue delay. 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). ANGELA ABRAHAM. They later moved to. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The location you tried did not return a result. 1200 S Columbia Rd, Grand Forks, ND, 58201 (701) 780-5260 OVERVIEW Dr. Bierenbaum graduated from the Albany Medical College in 1978. ''The guy was super nice,'' said Jason Naylor, a fellow pilot. The things you loved about AIDS Care have not changed as a result of our name change. 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. 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. Robert Biernbaum Do 259 Monroe Ave, Rochester, NY, 14607 8 other locations (585) 754-7858 Overview Locations OVERVIEW Dr. Biernbaum graduated from the University of New England College of. She also testified that they had many times discussed Katz separating from her husband. 2254. 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. Former NY surgeon admits killing wife, throwing body from airplane in 1985 (NCD) (NCD) NEW YORK Dr. Robert Bierenbaum maintained his innocence in 2000 as he was tried and convicted of killing . 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 . Failure to request charge on territorial jurisdiction. Bierenbaum argues that the Dalsass testimony was inadmissible absent defense counsel's remark, and the prosecution could not therefore have used it in summation. These included Ellen Schwartz, Francesca Beale, Katz's therapist Dr. Sybil Baran, Anthony Segalas and Kenneth Feiner. 1. it is a first professional graduate degree awarded upon graduation from medical school. Regardless of whether counsel's performance was deficient in failing to secure Sherman's testimony, Bierenbaum cannot show prejudice. Loma Linda, CA . Janet and the baby are fine. Katz told him that she was going to move in with her friend Ellen Schwartz in Connecticut. The Disappearance of Gail Katz Bierenbaum. We need not address this argument because of our disposition of this issue under Roberts. 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. As a subscriber, you have 10 gift articles to give each month. Dr. Biernbaum graduated from the University of New England College of Osteopathic Medicine in 1997. TimesMachine is an exclusive benefit for home delivery and digital subscribers. He was awaiting trial at his parents' home in East Orange, N.J., while his wife and daughter were in Pittsburgh. Medical School & Residency. 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. 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. He contends that the videotapes lacked any foundation in the evidence and were based on speculation. Trial Tr. Phone: (585) 754-7858,(585) 545-7200. He didn't stop when he knew he was hurting her. Dr. Bierenbaum graduated from the Albany Medical College in 1978. See People v. Bierenbaum, 850 N.E.2d 674 (N.Y.2006). He described her to the jury as deeply tanned, about five foot one, with a well-developed body. 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. Later in his summation, he returned to the drug-related disappearance theory: Segalas-they did a little bit, what they thought was cocaine that was left in the house. 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. 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). On February 25, 2008, the district court denied the petition without conducting an evidentiary hearing. He testified that Katz discussed with him her wish to leave her husband, their constant fights and arguments, and one argument during which Bierenbaum put his hands to her neck. Bierenbaum said no. The passage quoted above demonstrates that the Appellate Division found particularized guarantees of trustworthiness in the challenged statements. He didn't stop when he knew she was unconscious. A trial court may issue a trial order of dismissal as to any count of an indictment on the ground that the trial evidence is not legally sufficient to establish the offense charged. N.Y.Crim. That involved advice of counsel. The petition was denied on March 9, 2006. Location Comments: We're glad you're checking out Trillium Health. 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. In his petition he alleged that he was denied his Sixth Amendment right to effective assistance of counsel, and that admission of numerous hearsay statements violated his Sixth Amendment right to confront witnesses against him. Maryann DeCesare, a friend, testified that Katz told her that she was afraid of Bierenbaum's temper and that he had threatened her. Stay up-to-date with how the law affects your life. Before leaving town, Dr. Bierenbaum stopped in at Pietsch's to pay a bill. ABC news anchor John Quinones (right) interviews Daniel Bibb, an original prosecutor in the case involving the murder of Gail Katz-Bierenbaum by her husband Dr. Robert Bierenbaum, for a "20/20" tv . Ive waited a very,very long time for this day. 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. His wife, Gail Katz-Bierenbaum, 29, vanished on July 7, 1985.Her body was never recovered, and the prosecutions case was basedmainly on circumstantial evidence. The motion was denied. Medical School / Professional School: Dr. Stephanie Youngblood, a chiropractor who lived with Bierenbaum from 1990 to 1993, testified that Bierenbaum told her that Katz had a drug problem, was having extramarital affairs, and that he felt her death was drug-related: [h]e felt she went to Central Park to hang out with her druggie friends.. Image Credit: Stephanie Youngblood/ ABC News 20/20. 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. No one, other than Bierenbaum, reported seeing Katz after July 6. 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. 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. Dalsass asked Bierenbaum to narrate specifically and exactly how he spent the weekend that Katz disappeared. 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. Katz had an affair with Anthony Segalas, an investment banker, during the summer of 1984 and the spring of 1985. 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. Contact us. She stated that he told her this before the end of September. 06 Civ. He does not tr[y] to defuse the situation. 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. Late in 1984 or early 1985 Katz told her that she had received a letter from Bierenbaum's psychiatrist warning her that Bierenbaum posed a danger to her, and suggesting that Katz separate from him. The educational structure is rigorous, but the real draw of this school is the open and accepting atmosphere. 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. Looking back, people see sinister clues in the fact that his socks were mismatched, his airplane a mess. The RHIO icon appearing in a provider's directory listing indicates the provider 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. In fact, Bibb said, Bierenbaum knew very well that his wife wasdead. Forensic tests of two automobiles that Bierenbaum was driving at the time also yielded no results. . 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. She kept an appointment with her hairdresser, and met with a close friend that afternoon for a couple of hours. . 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. 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. She also told DeCesare that she thought she was being followed. He completed his Residency in Emergency Medicine from Genesys Regional Medical Center. 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. 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.) 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. Dr. Charles Hirsch, Chief Medical Examiner for New York City, testified that prior to the onset of rigor mortis, a dead body is pliable. The body of a woman five feet three inches tall, weighing about one hundred ten pounds could be folded and tied into a package about thirty-six inches long. Caruana testified that Bierenbaum told her in August or September that his apartment had been searched and that the police had cleared him. Bierenbaum told Katz's friend Ellen Schwartz that he had spoken with Katz's therapist Dr. Baran, who had told him that Katz was very depressed and she was concerned that Katz might hurt herself. This was not the first time Bierenbaum had choked her, but it was the first time that she lost consciousness. Few questioned Dr. Bob, as they called him, who was convicted last week of murdering his first wife. Edgar Rivera told the police that he did not remember seeing Katz on July 7. The state court concluded therefore that defense counsel was not ineffective for failing to move to dismiss for pre-indictment delay. Katz told DeCesare that she was unconscious, and that Bierenbaum had to call 9-1-1 for assistance. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. ''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. Katz also told Kasenbaum that she had gotten a letter from Bierenbaum's psychiatrist. The district court's denial of petitioner's application for a writ of habeas corpus is affirmed. The faculty-student ratio at . Consistently absent from any of his accounts of his activities on Sunday, July 7, 1985 was the fact that he rented an airplane in New Jersey that afternoon and went flying. These are not the acts of a suicidalperson, she said. 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. She wanted to know whether Bierenbaum had flown an airplane on the day of his wife's disappearance. See Richardson v. Greene, 497 F.3d 212, 217 (2d Cir.2007). amend. 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.