Bierenbaum faults the district court for concluding that counsel's efforts to secure her testimony were diligent, and concluding that failure to present her testimony did not prejudice the defense. is dean and Professor of Medicine for the College of Medicine at Charles R. Drew University of Medicine and Science. 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. How close up you are with a person that you are choking Strangulation is up close and personal. Bierenbaum argues that the Dalsass testimony was inadmissible absent defense counsel's remark, and the prosecution could not therefore have used it in summation. ''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. Pro. 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. 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 Appellate Division did not explicitly address Bierenbaum's confrontation clause claim,1 and the Court of Appeals denied leave to appeal without explanation. Segalas said she is the one who made the connection. Your recollection controls. The Disappearance of Gail Katz Bierenbaum. Please verify insurance information directly with your doctor's office as it may change frequently. Investigators with the Manhattan district attorney's office arrested him in Minot, and gave him 48 hours to return to New York and surrender. In a state that averages two people per square mile, it is more important to embrace newcomers than to fuss with details about the past. ''He'd come up to you if he saw a mole, and he would touch it,'' Mr. Hussey said. ''We're so sparsely populated around here,'' he said, ''we even have to import our criminals.''. In summation the prosecution improperly argued that Bierenbaum and his attorney prevented the police from conducting a complete search. 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. These included Ellen Schwartz, Francesca Beale, Katz's therapist Dr. Sybil Baran, Anthony Segalas and Kenneth Feiner. Location Comments: We're glad you're checking out Trillium Health. Depending on your income and household size, we can help you qualify for Child Health Plus, Family Health Plus, Medicaid, Healthy New York, EPIC, or the RPCN Community Health Care Plan. Law 290.10[1]. ''He brought us all little vials of grease'' for airplane parts, said Chris Grima, a mechanic whose wife made the pie. In 1999 Bierenbaum was indicted and charged with murder in the second degree in her death. He has 45 years of experience. Close to midnight that evening Bierenbaum telephoned Dr. Yvette Feis, one of Katz's friends, asking if she knew where Katz was. 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. Bierenbaum had contacted O'Malley on July 10 to inquire about the progress of the investigation. See Bierenbaum v. New York, 540 U.S. 821 (2003). Im very relieved, said Alayne Katz. As Dr. Bierenbaum's social efforts overcame the reserve of his new neighbors, his old neighbors were busy digging up his past. Former New York surgeon admits killing wife, throwing body from 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. In September 1986 Hope Martin, an investigator from the District Attorney's office, was assigned to investigate Katz's disappearance. ''At first it was just, 'That guy is nothing but strange,' '' said Curt Hussey, operator of the town's private flight school at Pietsch's airfield. The petition was denied on March 9, 2006. 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. Dr. Robert Bierenbaum is a health care provider primarily located in Grand Forks, ND. The prosecution would have argued that even if the jury believed Sherman was testifying truthfully about what she heard, her testimony was consistent with the prosecution's theory that Bierenbaum killed his wife in the course of an explosive argument. 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. All rights reserved. Being essentially softhearted, though, he e-mailed Dr. Bierenbaum before the trial to wish him good luck and got a brief response: ''Thanks. 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. To his friend he related that he and Katz had an argument that morning and that she had left the apartment to sunbathe in Central Park wearing shorts, sandals and a halter top. The prosecution called Katz's sister Alayne as a rebuttal witness. The torso was ruled out as belonging to Ms. Katz-Bierenbaum, whose remains have never been found. Hirsch also stated that a body could be disarticulated at the joints, a simple process that someone trained in anatomy could accomplish in ten minutes. 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. (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). Wiese advised her to leave immediately. Doctor of Osteopathic (DO) '' But when they learned he was a plastic surgeon and was checking for cancer, they softened. February 22, 2008. We disagree. Bierenbaum stated that he had come home from work at approximately 5 p.m. on Friday evening, that they went to a movie about 8 p.m. and returned about midnight. 3. But his life in Minot was already fraying. Michelle Kaszuba on the investigation of Gail Katz-Bierenbaum's disappearance, and her husband's murder trial. 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. Katz also told Kasenbaum that she had gotten a letter from Bierenbaum's psychiatrist. A few days before she disappeared, Katz told DeCesare that she had met someone in whom she was interested, and she wondered if DeCesare thought it would be all right if she brought him up to the apartment when Bierenbaum wasn't there. Think about the defendant. 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. The jury also learned that a Cessna 172 Skyhawk, the airplane that Bierenbaum rented, is a stable, easy-to-handle four passenger aircraft. 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. He did not find anything. Bierenbaum's petition for a writ of certiorari to the United States Supreme Court was denied on October 6, 2003. 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. ''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. In July, early in the investigation, Dalsass asked Bierenbaum if he could look around the apartment. The police report also stated that Katz phoned Segalas in June 1985 and asked him to examine some cocaine she had bought, because she thought she had received a short amount. (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. At that time the police had not searched his apartment or car. Stay up-to-date with how the law affects your life. It was not objectively unreasonable to do so. Francesca Beale, a former employer, testified that in a telephone conversation in 1983, Katz said that her husband had a terrible temper, that she was afraid of him. She should have made her appointments, she should have been where she said she would be and she could have come home but she didn't and that's why we can tell you that she is dead. On February 25, 2008, the district court denied the petition without conducting an evidentiary hearing. The sufficiency of the evidence, however, is not before us. Claim your profile (701) 780-5260 . 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. About The Provider. Though he doesn't like to admit it, Mike Berg, the friend from the Rotary Club, is angry. He has 26 years of experience. Although there was no evidence to that effect, defense counsel did not object. Bierenbaum told Caruana that he had hired a private investigator who had found evidence that Katz was in California. vol. Although on this record the Appellate Division could have found a claim of lack of intent to kill unpreserved, it addressed the legal sufficiency of both elements of second degree murder: The People proved beyond a reasonable doubt that this defendant had the opportunity, the motive, and the intent to kill his victim, and that it was he who did so. Bierenbaum, 748 N.Y. S.2d at 579. Dr. Baran denied that she'd had such a conversation with Bierenbaum and denied that Katz was suicidal. 28 U.S.C. If you wanted to start a new life, free of reproach or inquiry, this remote prairie town of 35,500 might be the place. One recent morning at Pietsch's airfield, where Dr. Bierenbaum spent hours tinkering with his plane and teaching flight safety for the Federal Aviation Administration, mechanics and pilots grounded by fog were eating apple pie. WebMD does not provide medical advice, diagnosis or treatment. Dear Nettie and entire Bierenbaum Family, The passing of Marvin aggrieved all in the Silverman family. 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. [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)). 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. All this means that the decision of the district court is properly affirmed. 2254(d); see also, e.g., Brown v. Alexander, 543 F.3d 94, 100 (2d Cir.2008). 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. Davis had been in a bagel shop in Manhattan on Second Avenue in the 80's on the afternoon of July 7, 1985, and he noticed an attractive woman wearing a distinctive t-shirt with a non-English word on it. Dr. Bierenbaum carried on as a good citizen, writing an article in The Grand Forks Daily Herald about how to avoid snowblower injuries. visit www.rpcn.org. 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. 2023 Rochester Health, Currently accepting new patients at this location. It was consistent with that theory to concede her death on July 7. Bierenbaum was sentenced on November 29, 2000. Dr. Robert Martin Biernbaum, DO is a health care provider primarily located in Rochester, NY, with other offices in Victor, NY and Columbus, OH ( and 2 other locations ). 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. Regardless of whether counsel's performance was deficient in failing to secure Sherman's testimony, Bierenbaum cannot show prejudice. 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. Kasenbaum testified that Katz told her she was having an affair with a colleague at a hospital where she was interning. He didn't stop when he knew she was unconscious. As a subscriber, you have 10 gift articles to give each month. 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. DeCesare said that Bierenbaum often mentioned water, that Katz was outside cooling off.. Segalas and Katz used cocaine together. ANGELA ABRAHAM. People here were on their guard at first because he dressed differently, had longer hair and a ''weird intensity'' about him. I also believe that the evidence of guilt is very thin. Please enter a valid 5-digit Zip Code. Dr. Kenneth Feiner developed a romantic relationship with Katz in the months prior to her disappearance. We review de novo a district court's decision to deny a petition for a writ of habeas corpus. 2254(b)(1)(A). Graduate School. Dr. Sybil Baran, Katz's therapist, testified that Katz was afraid of Bierenbaum's anger. McCullough testified that Katz told her that her husband had gotten angry at her and choked her because she had been smoking a cigarette. 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. A strong piece of the defense was the fact that there was no physical evidence to link Bierenbaum to the crime. The probable truth, Bibb said, is that Bierenbaum strangled hiswife in their Upper East Side Manhattan apartment after she toldhim she was leaving their loveless and sometimes violent marriagefor another man. Surgeon Admits to Throwing Wife Out of Plane - What's Up Today ''Going to other states and acting like you're innocent? See Feliz, 467 F.3d at 232. Trillium Health welcomes new Chief Medical Officer Respondents assert in the alternative, and the district court agreed, that with one exception the statements were not admitted for their truth. To Karnofsky Bierenbaum speculated that Katz was in a fugue state or that she had run off with someone to the Caribbean. 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. 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? He received a medical degree at Eastern Virginia Medical . In the late 1800's, the railroad lured transients to the town's many brothels and saloons. Ive waited for that sound a long time.. Katz moved out and lived for a time with her grandfather. A state law ground is only adequate to support the judgment and foreclose review of a federal claim if it is firmly established and regularly followed in the state, and application of the rule would not be exorbitant. Garvey v. Duncan, 485 F.3d 709, 713-14 (2d Cir.2007) (quoting Lee, 534 U.S. at 376). Of course, there is another explanation for what drew Dr. Bierenbaum here: the changes in medicine that have allowed the Trinity Health Center, where he worked, to become a regional hub. Robert "Rob" Biernbaum, D.O. Dr. Robert Bierenbaum . 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. Medical School & Residency. 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 stated that he nevertheless attempted to look for any evidence that a crime had been committed in the apartment, that he discovered no such evidence, but that he had not conducted a detailed forensic search. Dr. Ellen Schwartz, a close friend from graduate school, testified that Katz told her she was afraid of her husband, and that she was planning to leave him soon. Relevant factors include spontaneity, repetition, the mental state of the declarant, absence of motive to fabricate, unlikelihood of faulty recollection and the degree to which the statement was against the declarant's interest. 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). He requested an evidentiary hearing. The state court's conclusion was a reasonable application of Strickland. He faces 25 years to life and is to be sentenced on Nov. 20. The investigation was closed in April 1987. 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. 2120, 2008 WL 515035 (S.D .N.Y. In September Dalsass finally secured permission to search Bierenbaum's apartment. 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. TermsPrivacyDisclaimerCookiesDo Not Sell My Information, Begin typing to search, use arrow keys to navigate, use enter to select, Stay up-to-date with FindLaw's newsletter for legal professionals. Hillard Wiese, Katz's cousin, testified that Katz reported to him in the fall of 1983 that she had an argument with her husband during which he had choked her to unconsciousness. I join Judge Sessions's opinion fully because I believe it to be correct on the law. Before leaving town, Dr. Bierenbaum stopped in at Pietsch's to pay a bill. 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. 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. She stated that he told her this before the end of September. BIERENBAUM v. GRAHAM (2010) | FindLaw Maryann DeCesare, a friend, testified that Katz told her that she was afraid of Bierenbaum's temper and that he had threatened her. 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. Not only that's not disputed by us, but that she likely died some time on July 7, 1985. Trial Tr. Caruana testified that Bierenbaum told her in August or September that his apartment had been searched and that the police had cleared him. Doctor Convicted in 1985 Missing Body Case - ABC News Did Dr. Robert Bierenbaum Kill His Wife Gail Katz? 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). 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. Some say that doctors come here fleeing lawsuits, bouts with drugs and alcohol and strange gaps in their resumes. Rochester RHIO makes your information available wherever you Gail Katz and Robert Bierenbaum were married in August 1982. These are not the acts of a suicidalperson, she said.
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