In July, early in the investigation, Dalsass asked Bierenbaum if he could look around the apartment. ''I feel grief, like someone has died,'' he said. See Bierenbaum, 748 N.Y.S.2d at 589. 2120, 2008 WL 515035 (S.D .N.Y. Doctor of Osteopathic (DO) Dr. Kenneth Feiner developed a romantic relationship with Katz in the months prior to her disappearance. 2254 in the United States District Court for the Southern District of New York. The state court concluded therefore that defense counsel was not ineffective for failing to move to dismiss for pre-indictment delay. It was not unreasonable for the Appellate Division to conclude that the reliability of Katz's statements was amply supported. Id. 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. He also devoted time to charitable . A. is dean and Professor of Medicine for the College of Medicine at Charles R. Drew University of Medicine and Science. It is possible. Bierenbaum told Feis that the cats had fouled the rug and that he was having it cleaned. 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 ). 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. Bierenbaum claims that his counsel was ineffective because his motions did not specify that he was challenging the element of intent to kill, and that therefore he could not seek review of this claim on direct appeal. I join Judge Sessions's opinion fully because I believe it to be correct on the law. Bierenbaum, 748 N.Y.S.2d at 583. He contends that the videotapes lacked any foundation in the evidence and were based on speculation. 5. Rochester RHIO makes your information available wherever you Petitioner-Appellant Robert Bierenbaum was convicted after a jury trial of murder in the second degree, see N.Y. We review de novo a district court's decision to deny a petition for a writ of habeas corpus. DeCesare said that Bierenbaum often mentioned water, that Katz was outside cooling off.. Katz moved out and lived for a time with her grandfather. Forensic tests of two automobiles that Bierenbaum was driving at the time also yielded no results. Segalas said she is the one who made the connection. See Hemstreet v. Greiner, 491 F.3d 84, 90 (2d Cir.2007). Think about the defendant. 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. He had blocked the police from searching their Manhattan apartment. O'Malley met with Bierenbaum on the 13th and requested details of the previous weekend. Before long, Dr. Bierenbaum, a plastic surgeon, and his wife, Dr. Janet Chollet, an obstetrician-gynecologist, had settled in to medical practices, pitched in on community projects, had a home, a dog and a baby on the way. 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. The prosecution did argue in summation that Bierenbaum lied about the doorman, but the thrust of the argument was that Bierenbaum never spoke with Rivera at all in the days after Katz's disappearance.3 The Alvarez testimony, if believed, would not have countered this argument, as Alvarez did not claim that he'd mentioned his sighting of Katz to Bierenbaum, or anyone else, during this period. He requested an evidentiary hearing. Doctoral Student: Professors are approachable and dedicated, as well as being experts in their respective fields. 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. 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. 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. We're a team that goes into neighborhoods working to stop the spread of HIV through education, prevention, and testing events. Baran testified that she never told Bierenbaumthat. Throughout the search for Gail Katz-Bierenbaum, her family said they found her husband decidedly unhelpful. See People v. McLaughlin, 606 N.E.2d 1357, 1359 (N.Y.1992) ([F]or the State to have criminal jurisdiction, either the alleged conduct or some consequence of it must have occurred within the State.). A state court's determination of a factual issue is presumed to be correct, and may only be rebutted by clear and convincing evidence. 2254(e)(1); see Drake v. Portuondo, 553 F .3d 230, 239 (2d Cir.2009). 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. 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. vol. 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)). Robert Bierenbaum (born July 22, 1955) is an American former plastic surgeon and convicted murderer. ''How odd is it that a murderer had dinner at my house, a Seder no less,'' said Harriet Epstein, originally from Queens, who briefly ran the only bagel store here and whose late husband, a wealthy and prominent doctor, befriended and worked with Dr. Bierenbaum. 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.. 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). Pro. 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. Is this you? They later moved to. 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. This conclusion was neither contrary to nor an unreasonable application of the Supreme Court's Confrontation Clause precedent in 2002 and 2003. He received a medical degree at Eastern Virginia Medical . Alayne Katz, Katz's sister, testified that Katz had called her in the fall of 1983, extremely upset, and told her that her husband had tried to strangle her, that she lost consciousness, Bierenbaum revived her and apologized profusely. But he chokes her much harder than he'd done when she was only having a cigarette. The defense called one witness, Joel Davis. The Appellate Division found the error unpreserved, and declined to review it. 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. Penal Law 125.25[1], and sentenced to a term of imprisonment of twenty years to life. Had the defense gotten Segalas to admit that he and Katz used cocaine on several occasions, the defense suggestion that she may have been killed by drug dealers would still have been plagued by lack of evidence, as the state court noted. On March 17, 2006, Bierenbaum filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. 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 . Leave to appeal that decision to the New York Court of Appeals was denied on May 30, 2006. Jason Bierenbaum, MD, is a medical oncologist and hematologist at UPMC Hillman Cancer Center. 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. 9. 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. Bierenbaum had graduated from medical school in 1978, and was a surgical resident at Maimonides Medical Center in Brooklyn, New York. Bierenbaum argues that the Dalsass testimony was inadmissible absent defense counsel's remark, and the prosecution could not therefore have used it in summation. vol. 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. Two or three months later Bierenbaum told another of Katz's friends, Maryann DeCesare, that he thought she was waitressing by a seaside community. One of the main reasons is because the defendant wouldn't let them search the apartment. 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. He works in Rochester, NY and 8 other locations and specializes in Emergency Medicine and Family Medicine. When the prosecution gave notice during trial that it had provided copies of the videotapes to the defense, counsel stated I suspect we'll object. The trial judge responded And I suspect I'll allow it. Trial Tr. 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. The motion was denied on September 6, 2005, and leave to appeal was denied on January 12, 2006. 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. 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. That is not disputed. 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. Robert M Biernbaum - Rochester NY, Emergency Medicine at 259 Monroe Ave. 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. He told the detective that he remained at home until approximately 5:30 p.m., when he left for New Jersey. 8. 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. Dr. Bierenbaum carried on as a good citizen, writing an article in The Grand Forks Daily Herald about how to avoid snowblower injuries. Not only that's not disputed by us, but that she likely died some time on July 7, 1985. Trial Tr. In May 1989 a torso found washed up on a beach in Staten Island was determined by x-ray comparison to be Katz. 28 U.S.C. Only later would he learn what had happened. 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. 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. 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. Strickland, 466 U.S. at 689 (citations and internal quotation marks omitted). 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)). In 1998 the investigation was reopened, and the body was exhumed and determined by DNA comparison not to be Katz. 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. Dr. Robert Bierenbaum is a trained pilot serving 20 years to life in prison for the 1985 murder of his wife, Gail Katz. 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. They confronted Dr. Bierenbaum on the steps of the Trinity clinic, but he invoked his right to counsel. Here, Bierenbaum expressly invoked the Confrontation Clause to both appellate courts. Bierenbaum's only witness was Joel Davis, who saw a poster of the missing Katz and reported sighting her on a Manhattan street on the afternoon of Sunday, July 7. Courts have also considered the status or relationship to the declarant of the person to whom the statement was made, whether there was a coercive atmosphere, whether it was made in response to questioning and whether the statements reflect an attempt to shift blame or curry favor. that denied his petition for a writ of habeas corpus pursuant to 28 U.S.C. As physician and friend Marvin proved himself a real . University of New England College of Osteopathic Medicine. Contribute to our National Missing Person Day Fundraiser Home He didn't stop when he knew he was hurting her. The performance was videotaped, and the jury was shown the tapes. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. 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. Location Comments: We're glad you're checking out Trillium Health. He completed his Residency in Emergency Medicine from Genesys Regional Medical Center. Chokes her much harder than when he had only strangled her to unconsciousness. 2254. 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. Oppressive prosecutorial delay may violate the Due Process Clause of the United States Constitution. 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. She also told DeCesare that she thought she was being followed. [I]n a proper case, a lengthy and unjustifiable delay in commencing the prosecution may require dismissal even though no actual prejudice to the defendant is shown. People v. Singer, 376 N.E.2d 179, 186 (N.Y.1978). He told O'Malley that Katz was depressed and suicidal. Mr. Berg recalls it as the most remarkable experience of his life, one that ''fulfills a person's reason for being here.''. If you are uninsured or underinsured, or need a referral to a doctor or dentist, call our Affordable Health Line at 585-328-7000. For this strategy, the defense had no particular need to elicit evidence that Katz was a regular as opposed to occasional user. The affair began while Bierenbaum was vacationing in South Hampton on Long Island during the month of August, and lasted about six weeks. Trial Tr. 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. Boys don't touch boys here.' Caruana testified that Bierenbaum told her that his apartment and car had been searched and that he was clean as far as any police investigation was concerned. Phone: (585) 754-7858,(585) 545-7200. And as always, patient privacy and confidentiality remain of the utmost importance. [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.). The prosecution argued:What does he do? Kasenbaum testified that Katz told her she was having an affair with a colleague at a hospital where she was interning. Surgery, Internal Medicine. In fact, Bibb said, Bierenbaum knew very well that his wife wasdead. After an eight-day trial by jury in October 2000 before the Honorable Leslie Crocker Snyder in the Supreme Court of the State of New York, County of New York, the jury returned a verdict of guilty to the charge. 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. A state prisoner may fairly present to the state courts the constitutional nature of his claim by claim[ing] the deprivation of a particular right specifically protected by the Constitution. Daye v. Att'y Gen. of the State of N.Y., 696 F.2d 186, 193 (2d Cir.1982) (en banc). After the verdict,Snyder ordered him jailed to await sentencing. Under the circumstances, it was reasonable for defense counsel not to call Alvarez. To prevail on such a claim under federal law, Bierenbaum must prove that the delay resulted in actual prejudice and that the prosecution's reasons for the delay were improper. 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. 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.