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Under 2254(d)(1), a state-court decision is contrary to clearly established Supreme Court precedent if its conclusion on a question of law is opposite to that of the Supreme Court or if the state court decides a case differently than the Supreme Court's decision on a set of materially indistinguishable facts. Id. See People v. Bierenbaum, 790 N.E.2d 281 (N.Y.2003). 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 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. 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. 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. In July, early in the investigation, Dalsass asked Bierenbaum if he could look around the apartment. In discussing the evidence he also stated. 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). 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. Wiese advised her to leave immediately. Sherman's testimony would not have undermined confidence in the jury's guilty verdict. 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. Bierenbaum was charged with murder in the second degree in an indictment returned December 8, 1999. Find Dr. Biernbaum's address and more. Pablo Alvarez was employed at the apartment building in 1985. Given that the testimony was independently admissible, and the trial court gave a curative instruction in connection with the improper closing argument, defense counsel's mistaken reference to a forensic search did not open the door to prejudicial comments. Dr. Bierenbaum graduated from the Albany Medical College in 1978. Rochester RHIO. To him, the case against Dr. Bierenbaum seems ''so over-circumstantial'' that he thinks maybe an appeal would succeed. Many of our partners in care are also providing services on site, just as they did before. 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)). Dr. Kenneth Feiner developed a romantic relationship with Katz in the months prior to her disappearance. Under the circumstances, it was reasonable for defense counsel not to call Alvarez. Following the close of evidence, counsel move[d] to dismiss the indictment on the basis that the People have failed to prove their case beyond a reasonable doubt and to the legal standard required for the case to go to the jury. Id. Dr. Bierenbaum specializes in lung cancer, gastrointestinal cancers, and myelodysplasia. In the late 1800's, the railroad lured transients to the town's many brothels and saloons. It was consistent with that theory to concede her death on July 7. Doctor of Osteopathic (DO) He did not focus on Bierenbaum's having prevented a forensic search. Write a Review . 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. 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. DeCesare testified that Katz told her that Bierenbaum had threatened to kill her if she left him. Bierenbaum told Karnofsky that the police had asked him if he had removed the apartment rug or had it cleaned, and that he had answered that he had not. In May 1989 a torso found washed up on a beach in Staten Island was determined by x-ray comparison to be Katz. 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. 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. With bitter winters and little company, residents here have little use for moral condemnation. At 4:30 p.m. he was already in New Jersey, flying his rented airplane. O'Malley met with Bierenbaum on the 13th and requested details of the previous weekend. On March 17, 2006, Bierenbaum filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. 5. During their second conversation, Bierenbaum told O'Malley that he had been mistaken and that the doorman thought it was another day that he had seen Katz. I add a few words because this case troubles me. Copyright 2023, Thomson Reuters. He returned from New Jersey at approximately midnight. is dean and Professor of Medicine for the College of Medicine at Charles R. Drew University of Medicine and Science. Bierenbaum argues that the Dalsass testimony was inadmissible absent defense counsel's remark, and the prosecution could not therefore have used it in summation. He said, 'I just have a lot on my mind.' 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. Medical School / Professional School: 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. The RHIO icon appearing in a provider's directory listing indicates the provider 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. (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). When O'Malley asked him why he waited until the evening of the following day to report Katz missing, Bierenbaum stated that he felt she would return, and when she didn't friends advised him to notify the police. Katz was a graduate student pursuing a Ph.D. degree in clinical psychology at Long Island University. Is this you? See Feliz, 467 F.3d at 232. Petitioner-Appellant Robert Bierenbaum was convicted after a jury trial of murder in the second degree, see N.Y. Please verify insurance information directly with your doctor's office as it may change frequently. Please verify insurance information directly with your doctor's office as it may change frequently. In short, Minot has always been a good place to reinvent oneself or to hide. DeCesare said that Bierenbaum often mentioned water, that Katz was outside cooling off.. The sufficiency of the evidence, however, is not before us. Katz told him that she was going to move in with her friend Ellen Schwartz in Connecticut. Segalas and Katz used cocaine together. ''It's the loss of his life and the good he does to help other people. During the trial defense counsel unsuccessfully attempted to serve Sherman, who had moved to Arizona. The decision not to do so was a defensible trial strategy. at 583. 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). 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. Sherman would have testified that she believed Katz left the apartment after the door slammed. We need not address this argument because of our disposition of this issue under Roberts. ''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. He only stopped when she was dead We think about the intimacy of strangulation. Deborah Prothrow-Stith, M.D. Jason Bierenbaum, MD, is a medical oncologist and hematologist at UPMC Hillman Cancer Center. The affair began while Bierenbaum was vacationing in South Hampton on Long Island during the month of August, and lasted about six weeks. 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. Gail Katz and Robert Bierenbaum were married in August 1982. Few questioned Dr. Bob, as they called him, who was convicted last week of murdering his first wife. 6. She kept an appointment with her hairdresser, and met with a close friend that afternoon for a couple of hours. Bierenbaum argues that even if it were within the range of reasonable strategic choices to concede that Katz was dead, it was not reasonable to concede that she died on the Sunday she disappeared. 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. Kasenbaum saw Katz on the day before she disappeared. 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. He told O'Malley that Katz was depressed and suicidal. 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. Under New York law, a motion to dismiss for insufficient evidence must be specifically directed at the alleged error. People v. Gray, 652 N.E.2d 919, 921 (N.Y.1995) (internal quotation marks omitted). Janet and the baby are fine. Dr. Robert Bierenbaum . 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. June Sherman lived directly below the Bierenbaum apartment. 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. vol. She would have had to admit that she did not see Katz leave, nor could she be sure that the door was the exterior door, rather than an interior door. These included Ellen Schwartz, Francesca Beale, Katz's therapist Dr. Sybil Baran, Anthony Segalas and Kenneth Feiner. Contact us. He told the detective that he remained at home until approximately 5:30 p.m., when he left for New Jersey. United States v. Langella, 776 F.2d 1078, 1083 (2d Cir.1985) (citing Lovasco, 431 U.S. at 790); accord United States v. Cornielle, 171 F.3d 748 (2d Cir.1999). O'Malley asked if Bierenbaum had ever hit his wife. And when detectives grilled him about what he did on July 7, 1985, the day his wife disappeared, he never mentioned his two-hour solo flight in a Cessna over the Atlantic Ocean. Defense counsel did not object to the instruction or request a stronger one. See Bierenbaum v. Graham, No. Now, you know what his intent was.Trial Tr. 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. Some say that doctors come here fleeing lawsuits, bouts with drugs and alcohol and strange gaps in their resumes. 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). 2254(d); see also, e.g., Brown v. Alexander, 543 F.3d 94, 100 (2d Cir.2008). UC San Diego Health Physician Network is an alliance of health care providers based in San Diego, Riverside and Imperial counties. Failure to move for dismissal on the ground of insufficient evidence of specific intent to kill. Bierenbaum's counsel explained that he was concerned that a contemporaneous objection would have prompted the trial court to sum up in favor of the prosecution, in other words, to highlight for the jury the argument that counsel found objectionable. All rights reserved. The state court concluded therefore that defense counsel was not ineffective for failing to move to dismiss for pre-indictment delay. This conclusion was neither contrary to nor an unreasonable application of the Supreme Court's Confrontation Clause precedent in 2002 and 2003. I, 1881, Oct. 2, 2000. '', Dr. Williams thinks that, regardless of whether or not Dr. Bierenbaum is guilty, he has suffered enough and should be allowed out on a work-release program to continue treating patients. Dr. Prothrow-Stith is an internationally recognized public health leader, who since 2008 has advised top-tier healthcare, life sciences, academic and not-for-profit institutions on leadership and . In 1999 Bierenbaum was indicted and charged with murder in the second degree in her death. Bierenbaum said that she had gone out earlier in the day and had not returned to their apartment. I, 1889. They later moved to. On February 25, 2008, the district court denied the petition without conducting an evidentiary hearing. USC's Keck School of Medicine and UCI's Susan and Henry Samueli College of Health Sciences . As Dr. Bierenbaum's social efforts overcame the reserve of his new neighbors, his old neighbors were busy digging up his past. Its tuition is full-time: $38,920 (in-state) and full-time: $51,175 (out-of-state). 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. The torso was ruled out as belonging to Ms. Katz-Bierenbaum, whose remains have never been found. 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 . 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. Was she killed by drug dealers? 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. February 22, 2008. Bierenbaum told O'Malley that he and Katz had a mild argument Friday night which continued on Saturday, whereupon Katz told him that she was going to Central Park to cool off at about 11 a.m. Bierenbaum said that he had spent some time at the apartment waiting for Katz to return, but then left at some point to visit his family in New Jersey. 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. 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. Although there was no evidence to that effect, defense counsel did not object. Dalsass testified that Bierenbaum's attorney gave permission for the police to conduct a limited search for items that might help to identify Katz. 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. vol. In summation the prosecution improperly argued that Bierenbaum and his attorney prevented the police from conducting a complete search. 2005 - 2023 WebMD LLC. Boys don't touch boys here.' 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. She states that on the morning Katz disappeared, Katz was screaming at someone. How close up you are with a person that you are choking Strangulation is up close and personal. Prior to that date he had not been permitted to enter the apartment. . If you wanted to start a new life, free of reproach or inquiry, this remote prairie town of 35,500 might be the place. Dalsass asked Bierenbaum to narrate specifically and exactly how he spent the weekend that Katz disappeared. At that time the police had not searched his apartment or car. 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. ''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. 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. A petitioner has fairly presented his claim only if he has informed the state court of both the factual and the legal premises of the claim he asserts in federal court. Jones v. Keane, 329 F.3d 290, 294-95 (2d Cir.2003) (internal quotation marks omitted) (quoting Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir.1997)). Think about him standing over Gail Katz as she feels and he watches the life ebbing from her body. O'Malley asked if he had ever choked his wife to the point of unconsciousness, and Bierenbaum said that he didn't want to speak about that. Your recollection controls. Defense counsel did not move to dismiss the indictment for undue delay. ''The conversation lasted 30 seconds, and he wasn't as upset as I would have expected.''. 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. His specialties include Emergency Medicine, Family Medicine. They resided in a twelfth-floor apartment on East 85th Street in Manhattan. art. When two weeks later he saw posters of Katz, he identified her as the woman he had seen, and he called the police. He didn't stop when he knew she was unconscious. 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. Given that the Appellate Division reviewed the claim that the evidence was legally insufficient to prove that Bierenbaum intended to cause Katz's death, he cannot claim that counsel was ineffective in failing to preserve the issue for appeal.