Directly following this argument he alluded to the films Panic in Needle Park, and Looking for Mr. Goodbar, and suggested, in a similar vein, that these movies did not prove that Katz's drug use and risky behavior were connected to her death. 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. 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. O'Malley met with Bierenbaum on the 13th and requested details of the previous weekend. ABC's '20/20 portrays how Robert Bierenbaum did not seem affected by his wife Gail Katz's disappearance in July 1985. The next morning he went to work, and that evening reported Katz missing. Think about him standing over Gail Katz as she feels and he watches the life ebbing from her body. As a subscriber, you have 10 gift articles to give each month. Please try again. 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. as the organization's new Chief Medical Officer.. Some in Minot now think of Dr. Bierenbaum's good works as an effort to expiate guilt. 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. Loma Linda University . Look for the RHIO icon for authorized RHIO participants. Dr. Baran denied that she'd had such a conversation with Bierenbaum and denied that Katz was suicidal. Bierenbaum, 748 N.Y.S.2d at 583-84. ''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. 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. ANGELA ABRAHAM. 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. They resided in a twelfth-floor apartment on East 85th Street in Manhattan. 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. It's still wrong and you didn't face it.'' Albany Medical College ; Bierenbaum said that she had gone out earlier in the day and had not returned to their apartment. ''The conversation lasted 30 seconds, and he wasn't as upset as I would have expected.''. Robert "Rob" Biernbaum, D.O. 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). 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.'' Janet and the baby are fine. 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. The decision not to do so was a defensible trial strategy. (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). vol. Write a Review . ''He'd come up to you if he saw a mole, and he would touch it,'' Mr. Hussey said. 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. Dear Nettie and entire Bierenbaum Family, The passing of Marvin aggrieved all in the Silverman family. E.g., Henry v. Ricks, 578 F.3d 134, 137 (2d Cir.2009). The jury also learned that a Cessna 172 Skyhawk, the airplane that Bierenbaum rented, is a stable, easy-to-handle four passenger aircraft. 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 . 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. 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. Law 470.05[2]. If you are not eligible for any of these plans, we will help you identify other healthcare access options to meet your needs. For more information, go to 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. I, 6. 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. 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. 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. We addressed this point in connection with counsel's mistake in referring to a forensic examination in his opening statement, and found no prejudice. Stay up-to-date with how the law affects your life. He is a member of the UC San Diego Health Physician Network. Robert Hickman, MD, is a board-certified physician providing primary care through One Medical, an independent, membership-based practice with an annual fee. The Strickland standard is rigorous, Bell v. Miller, 500 F.3d 149, 155 (2d Cir.2007): Judicial scrutiny of counsel's performance must be highly deferential [;] every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Sherman believed that Katz left the apartment when the door slammed. To him, the case against Dr. Bierenbaum seems ''so over-circumstantial'' that he thinks maybe an appeal would succeed. 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. 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. RochesterHealth.com is a nonprofit 501(c)(3) community-centered website serving as a connection to Rochester-area healthcare resources. The motion was denied. ''We worry about today and tomorrow here, not last week.''. 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. Segalas said she is the one who made the connection. Please enter a valid 5-digit Zip Code. First of all, it is not disputed by us that Gail Katz Bierenbaum is dead. at 583. The district court determined that Bierenbaum failed to exhaust his state court remedies with regard to his Confrontation Clause claim, finding that he did not argue the claim in his application for leave to appeal to the New York Court of Appeals. The things you loved about AIDS Care have not changed as a result of our name change. Gail Katz and Robert Bierenbaum were married in August 1982. 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. 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. 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. Katz cooked steaks that night and they had a romantic candlelight dinner. The search was thus limited to the scope of the permission given. DeCesare said that Bierenbaum often mentioned water, that Katz was outside cooling off.. In summation the prosecution improperly argued that Bierenbaum and his attorney prevented the police from conducting a complete search. He told the detective that he remained at home until approximately 5:30 p.m., when he left for New Jersey. 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. At that time the police had not searched his apartment or car. 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. Decker, 912 N.E.2d at 1043 (quoting People v. Taranovich, 335 N.E.2d 303, 306 (N.Y.1975)). The Confrontation Clause of the Sixth Amendment to the United States Constitution states: in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. U.S. Const. I join Judge Sessions's opinion fully because I believe it to be correct on the law. 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. Dr. Bierenbaum told locals that he loved his new town for being free of traffic and crime. The Appellate Division found the error unpreserved, and declined to review it. 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. Detective O'Malley testified that Bierenbaum told him he'd made a mistake, and that Rivera wasn't sure when he'd seen Katz. Members of the network collaborate on . According to her affidavit, she was acutely aware of Katz, who frequently screamed at her husband and walked around noisily in high-heeled shoes. asked Stephanie, a bookkeeper in town who was treated by Dr. Bob and who asked that her last name not be used. He did not find anything. 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. Image Credit: Stephanie Youngblood/ ABC News 20/20. We disagree. gofrom the doctor to the pharmacist,primary care physician to a specialist, or a radiology center to the emergency room. How close up you are with a person that you are choking Strangulation is up close and personal. See Hemstreet v. Greiner, 491 F.3d 84, 90 (2d Cir.2007). 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.. 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. Cardiovascular Disease, Internal Medicine. at 3107, Oct. 23, 2000. Katz told Feis that she intended to use the letter as leverage in divorce proceedings by threatening to use it to ruin his career. art. 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. If the jury harbored a reasonable doubt concerning Bierenbaum's guilt, an instruction on jurisdiction would not have assisted the defense. 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 email address cannot be subscribed. TimesMachine is an exclusive benefit for home delivery and digital subscribers. He said that he had called Katz's mother and two of her friends to see if she was there. Relief and SorrowWhen the verdict was read, the victims sister, Alayne Katz ofIrvington, N.Y., burst into tears and slumped over the leg of herbrother, Steven, shaking and sobbing. 2120, 2008 WL 515035 (S.D.N.Y. The rule applies with equal force whether the state-law ground is substantive or procedural. Lee v. Kemna, 534 U.S. 362, 375 (2002). In the hangar where Dr. Bierenbaum's Comanche still sits, Val Friesen was on his back with a wrench and a rag, repairing an airplane wing. The petition was denied on March 9, 2006. Segalas testified that Katz told him she was in a very unhappy marriage, that she was afraid of her husband and that he had tried to strangle her once. Anyone can read what you share. In the late 1800's, the railroad lured transients to the town's many brothels and saloons. The investigation was closed in April 1987. Under Roberts, the statements of an unavailable hearsay declarant were admissible only if [they bore] adequate indicia of reliability, which could be satisfied by demonstrating that the evidence fell within a firmly rooted hearsay exception, or that the evidence had particularized guarantees of trustworthiness. 448 U.S. at 66. Even a neophyte could have found danger. Pressing the point on cross-examination risked alienating the jury for no particular strategic gain. As Dr. Bierenbaum's social efforts overcame the reserve of his new neighbors, his old neighbors were busy digging up his past. Dr. Robert M Biernbaum - Rochester NY, Emergency Medicine at 259 Monroe Ave. Being essentially softhearted, though, he e-mailed Dr. Bierenbaum before the trial to wish him good luck and got a brief response: ''Thanks. 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. IV, 3194, 3227-28. See Richardson v. Greene, 497 F.3d 212, 217 (2d Cir.2007). 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. Katz recounted an incident when Bierenbaum discovered her smoking a cigarette, got very angry, came at her and choked her. 2254(e)(1); see Drake v. Portuondo, 553 F .3d 230, 239 (2d Cir.2009). 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. Bierenbaum said he would get back to him, but did not. Learn more about FindLaws newsletters, including our terms of use and privacy policy. 3. Defense counsel made no contemporaneous objection, but after the summation and before the jury charge he moved for a mistrial on that and other grounds. Rochester RHIO. Penal Law 125.25[1], and sentenced to a term of imprisonment of twenty years to life. This was the same year that a partial female body washed ashore in Staten Island, New York. Bibb said one lie was that after Katz-Bierenbaum disappeared, aprivate investigator told the cosmetic surgeon that his wife was awaitress at a seaside resort in California. DeCesare testified that Katz told her that Bierenbaum had threatened to kill her if she left him. He did not see her return. Katz had an affair with Anthony Segalas, an investment banker, during the summer of 1984 and the spring of 1985. This conclusion was neither contrary to nor an unreasonable application of the Supreme Court's Confrontation Clause precedent in 2002 and 2003. Feb. 25, 2008). Dr. Sybil Baran, Katz's therapist, testified that Katz was afraid of Bierenbaum's anger. Dr. Robert Bierenbaum is a trained pilot serving 20 years to life in prison for the 1985 murder of his wife, Gail Katz. 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. 7. 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. That is one of the theories that could have happened. 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. He didn't stop when he knew he was hurting her. Many of our partners in care are also providing services on site, just as they did before. Its tuition is full-time: $38,920 (in-state) and full-time: $51,175 (out-of-state). 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 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. At 4:30 p.m. he was already in New Jersey, flying his rented airplane. The prosecution called Katz's sister Alayne as a rebuttal witness. 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. it is a first professional graduate degree awarded upon graduation from medical school. The police searched for Katz between her apartment and Central Park and found no trace of her. Contribute to our National Missing Person Day Fundraiser Home I also believe that the evidence of guilt is very thin. Katz moved out and lived for a time with her grandfather. We've now expanded our services to include comprehensive medical care for HIV negative and LGBT communities. 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. But his life in Minot was already fraying. He told O'Malley that Katz was depressed and suicidal. 28 U.S.C. Pro. It follows that the state court's rejection of Bierenbaum's ineffective assistance of counsel claim was not an unreasonable application of the Strickland standard. Katz told her that the night before she took her Graduate Record Exam, Bierenbaum choked her to unconsciousness because she smoked a cigarette. CALABRESI, Circuit Judge, filed a concurring opinion. Failure to move for dismissal on the ground of insufficient evidence of specific intent to kill. He contends that the videotapes lacked any foundation in the evidence and were based on speculation. The state court's conclusion was a reasonable application of Strickland. 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. [T]o qualify as an adjudication on the merits, a state court decision need not mention a particular argument or explain the reasons for rejecting it. Dallio v. Spitzer, 343 F.3d 553, 560 (2d Cir.2003); see also Brown v. Artuz, 283 F.3d 492, 498 (2d Cir.2004) (finding that Sixth Amendment claim was adjudicated on the merits when state court dismissed it by stating defendant's remaining contentions are without merit.). And as always, patient privacy and confidentiality remain of the utmost importance. In this vital role, Biernbaum will oversee Trillium Health's expansion as we provide new services, barrier-free access to medical care . 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. Dr. Leigh McCullough, Katz's employer in the fall of 1983, noticed bruises on Katz's neck one day. She stated that he told her this before the end of September. About Robert Bierenbaum . 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. Moreover, it was a reasonable trial strategy to establish a forthright relationship with the jury, by conceding what the defense did not have evidence to contest. 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. 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 passage quoted above demonstrates that the Appellate Division found particularized guarantees of trustworthiness in the challenged statements. Dr. Robert Bierenbaum, a former plastic surgeon from New York convicted of murdering his wife in 2000, confessed to killing her and then throwing her body out of an airplane and into the Atlantic ocean after decades of maintaining his innocence. Jason Bierenbaum, MD, is a medical oncologist and hematologist at UPMC Hillman Cancer Center. 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. 2023 Rochester Health, Currently accepting new patients at this location. 2005 - 2023 WebMD LLC. He received his. Had defense counsel moved to dismiss the indictment, the motion would not have been granted, and therefore there was no reasonable probability that the outcome-proceeding to trial-would have been different. Bierenbaum also takes exception to his trial counsel's failure to object to the prosecution's contention that he prevented a complete forensic examination of the apartment. 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. 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. Anthony Segalas testified at trial that he and Katz used cocaine together twice. '' But when they learned he was a plastic surgeon and was checking for cancer, they softened. ''And people would just be like, 'Hey buddy, don't touch me. Now, you know what his intent was.Trial Tr. Mr. Berg recalls it as the most remarkable experience of his life, one that ''fulfills a person's reason for being here.''. Claim your profile (701) 780-5260 . Dr. Robert Biernbaum is a Emergency Medicine Physician in Victor, NY. Now we will tell you that the evidence will also show that she is dead. Nontestimonial statements therefore do not implicate the Confrontation Clause. Dalsass had numerous telephone calls from members of Katz's family during that same time period. 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. In the 1920's, whiskey traffickers lived among the Lutheran churches and businesses. For this strategy, the defense had no particular need to elicit evidence that Katz was a regular as opposed to occasional user. 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. A forensic examination of the aircraft yielded no results. His specialties include Emergency Medicine, Family Medicine. That involved advice of counsel. We're a team that goes into neighborhoods working to stop the spread of HIV through education, prevention, and testing events. 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. 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. He said, 'I just have a lot on my mind.' The sufficiency of the evidence, however, is not before us. 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 .
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