Bierenbaum gave detailed statements of his activities to both investigating officers in the days following Katz's disappearance. Grand Forks, ND 58201 . Robert Hickman, MD, is a board-certified physician providing primary care through One Medical, an independent, membership-based practice with an annual fee. vol. O'Malley asked if Bierenbaum had ever hit his wife. participates with the Rochester RHIO. He has 26 years of experience. CALABRESI, Circuit Judge, filed a concurring opinion. Bierenbaum's attorney gave permission for the police to search for fingerprints and anything that might help them identify Katz. It ranks in the top 20 in the United States for both research and primary care. Katz told Feis that she intended to use the letter as leverage in divorce proceedings by threatening to use it to ruin his career. Rather, the tape's contents clearly demonstrate the feasibility of the People's theory of this case, a theory which all of the circumstantial proof together overwhelmingly shows. Bierenbaum, 748 N.Y.S.2d at 589 (dictum). 2254(b)(1)(A). 1. ''We worry about today and tomorrow here, not last week.''. He works in Rochester, NY and 8 other locations and specializes in Emergency Medicine and Family Medicine. 7. 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. Strickland, 466 U.S. at 689 (citations and internal quotation marks omitted). ''And people would just be like, 'Hey buddy, don't touch me. According to her affidavit, she was acutely aware of Katz, who frequently screamed at her husband and walked around noisily in high-heeled shoes. 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. ''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. Law 470.05[2]. 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 defense called one witness, Joel Davis. In the 15 years since his wife, Gail Katz-Bierenbaum, disappeared, Dr. Bierenbaum remarried, had a baby girl and built a thriving medical practice in Minot, N.D. UC San Diego Health Physician Network is an alliance of health care providers based in San Diego, Riverside and Imperial counties. (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. He called Katz's mother to see if she had heard from Katz, and went to bed. Anyone can read what you share. On July 14, Dalsass met with Bierenbaum, his father and Katz's parents. Segalas said she is the one who made the connection. Few questioned Dr. Bob, as they called him, who was convicted last week of murdering his first wife. 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). Robert "Rob" Biernbaum, D.O. 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. She also testified that they had many times discussed Katz separating from her husband. Cardiovascular Disease, Internal Medicine. Often thereafter Katz would ask her for advice: would DeCesare leave her husband if he threatened to strangle her; had DeCesare's husband ever threatened to hurt her; should she leave Bierenbaum. Contact us. 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. Nontestimonial statements therefore do not implicate the Confrontation Clause. Think about him looking at her while he squeezes the life out of her. Katz was a graduate student pursuing a Ph.D. degree in clinical psychology at Long Island University. 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. Bierenbaum suggests now that a jury could have concluded that if he killed his wife on July 7, 1985, he might have done so in New Jersey and not in New York. 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. 8. A state court decision involves an unreasonable application of clearly established Supreme Court precedent if it correctly identifies the governing legal principle but unreasonably applies or unreasonably refuses to extend that principle to the facts of a particular case. Rochester RHIO. He did not see her return. An inspector for the Federal Aviation Administration testified that in his opinion a pilot could singlehandedly dispose of something from the plane without a great deal of difficulty. 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. A state court's determination of a factual issue is presumed to be correct, and may only be rebutted by clear and convincing evidence. On appeal to the Appellate Division, First Department, Bierenbaum argued that his guilt was not proven beyond a reasonable doubt. As a subscriber, you have 10 gift articles to give each month. Assuming that Katz's statements were admitted for the truth of the matters asserted,2 they meet the Roberts standard for admissibility. 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. Location Comments: We're glad you're checking out Trillium Health. Bierenbaum told Feis that the cats had fouled the rug and that he was having it cleaned. 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. 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. At that time the police had not searched his apartment or car. 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. 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. 1200 S Columbia Rd, Grand Forks, ND, 58201 (701) 780-5260 OVERVIEW Dr. Bierenbaum graduated from the Albany Medical College in 1978. Its open wheat fields, quiet ways and uncritical embrace of strangers drew two such outsiders here in 1996, a doctor couple from New York and California who had both practiced medicine in Las Vegas. 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. 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. On appeal to the Appellate Division, First Department, Bierenbaum presented, among other questions, the following: Whether Dr. Bierenbaum was denied a fair trial by the improper admission of widespread testimony recounting statements purportedly made by Ms. Bierenbaum, which did not satisfy any hearsay exception or the confrontation clause of the state and federal constitutions ? Similarly, in his letter seeking leave to appeal to the New York Court of Appeals, he argued that leave should be granted to review the admissibility of background evidence through hearsay declarations, whether in domestic violence cases or otherwise, and to consider whether admission of such evidence denies a defendant his state and federal rights of confrontation.. Katz also told Kasenbaum that she had gotten a letter from Bierenbaum's psychiatrist. He told the detective that he remained at home until approximately 5:30 p.m., when he left for New Jersey. 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. Medical School / Professional School: The jury also learned that a Cessna 172 Skyhawk, the airplane that Bierenbaum rented, is a stable, easy-to-handle four passenger aircraft. When the trial court's attention was drawn to this error, it refused to order a mistrial, but offered an instruction, admonishing the jury that it could draw no negative inference from an individual's acting on advice of counsel. University of New England, College of Osteopathic Medicine, Certifications:American Osteopathic Board of Emergency Medicine. Failure to move for dismissal on the ground of insufficient evidence of specific intent to kill. Anthony Segalas testified at trial that he and Katz used cocaine together twice. 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. The petition was denied on March 9, 2006. 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. Copyright 2023, Thomson Reuters. Its tuition is full-time: $38,920 (in-state) and full-time: $51,175 (out-of-state). Only later would he learn what had happened. Bierenbaum had been out on $500,000 bail. RochesterHealth.com is a nonprofit 501(c)(3) community-centered website serving as a connection to Rochester-area healthcare resources. I heard the cuffs close round hishands. 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. Penal Law 125.25[1], and sentenced to a term of imprisonment of twenty years to life. 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. 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. See Bierenbaum v. Graham, No. Ive waited for that sound a long time.. 2. Dalsass asked Bierenbaum to narrate specifically and exactly how he spent the weekend that Katz disappeared. To satisfy the second part of the Strickland test-prejudice-Bierenbaum must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id., 466 U.S. at 694. Kasenbaum saw Katz on the day before she disappeared. The evidence at trial was set forth in detail in the district court's February 25, 2008 opinion, and we recount below only the evidence necessary to resolve the issues presented on appeal. 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. Edgar Rivera told the police that he did not remember seeing Katz on July 7. Robert moved to Las Vegas, Nevada in 1989 and set up a medical practice in the city. Her body was never found. 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. But his life in Minot was already fraying. We're a special place where you'll receive the best HIV/AIDS medical care, prevention, and support services available today from experts who are recognized worldwide for their innovative treatment therapies, research, and clinical trials expertise. 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 . Now, you know what his intent was.Trial Tr. Think about the defendant. Medical School & Residency. Bierenbaum had graduated from medical school in 1978, and was a surgical resident at Maimonides Medical Center in Brooklyn, New York. To Karnofsky Bierenbaum speculated that Katz was in a fugue state or that she had run off with someone to the Caribbean. The trial court also thereafter advised the jury: I have allowed the People to introduce evidence that on another occasion this defendant committed a prior, what we call legally []bad act, [] to wit, the strangling of Gail Katz Bierenbaum to unconsciousness and that was allowed in for certain limiting purposes and I want to make that very clear, as I did at the time such evidence was admitted. Bierenbaum told Caruana that he had hired a private investigator who had found evidence that Katz was in California. Dr. Bierenbaum carried on as a good citizen, writing an article in The Grand Forks Daily Herald about how to avoid snowblower injuries. 2005 - 2023 WebMD LLC. Bierenbaum called her therapist and others on that day asking if they had seen her. Investigators with the Manhattan district attorney's office arrested him in Minot, and gave him 48 hours to return to New York and surrender. We've now expanded our services to include comprehensive medical care for HIV negative and LGBT communities. She stated that he told her this before the end of September. Law 290.10[1]. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. When two weeks later he saw posters of Katz, he identified her as the woman he had seen, and he called the police. All rights reserved. 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. 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. provider will be able to view your information so they can provide the most informed care and treatment. vol. University of New England College of Osteopathic Medicine. 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)). But Dr. Bierenbaum had a strong record, excellent training and appeared to have an unblemished past, Mr. Schwann recalled, until New York City investigators, accompanied by Mr. Maixner, arrived in November 1998 to look into some issues. He does not tr[y] to defuse the situation. 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? More recently she talked of moving in with a girlfriend in Connecticut. Dr. Roberta Karnofsky, an anesthesiologist, had a year-long relationship with Bierenbaum beginning in fall 1985, while she was a medical student under his supervision. The police searched for Katz between her apartment and Central Park and found no trace of her. The three psychiatrists, who treated Dr. Bierenbaum briefly in 1983, when he and his wife lived on the Upper East Side, warned his wife at the time that she was in danger. On Saturday, July 6, 1985, Katz kept a follow-up appointment with her gynecologist, and made a further appointment in December. His specialties include Emergency Medicine, Family Medicine. Robert Bierenbaum (born July 22, 1955) is an American former plastic surgeon and convicted murderer. Feb. 25, 2008). 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. University Of New England College Of Osteopathic Medicine. He knew in July of 1985, what it would take to kill her. 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. Although Bierenbaum did not express any concern about his wife at the party, later that evening at a friend's house he appeared distraught and called the apartment a couple of times. He contends that the videotapes lacked any foundation in the evidence and were based on speculation. 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. 9. She wanted to know whether Bierenbaum had flown an airplane on the day of his wife's disappearance. 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. Bierenbaum argues that the challenged statements were inadmissible under either the Roberts or the Crawford and Davis standard: that the statements were admitted for their truth, that no hearsay exception applied, that the statements showed no particularized guarantees of trustworthiness, and that the statements were testimonial. Dr. Bierenbaum told locals that he loved his new town for being free of traffic and crime. About The Provider. His wife had decided to leave medicine and begin law school about 200 miles away in Grand Forks, N.D., where she moved, creating a hectic commuter marriage. Dalsass contacted several individuals whose names he had obtained from Bierenbaum or Katz's family who might have information about Katz. 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.