He works in Grand Forks, ND and specializes in Surgery and Internal Medicine. 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. Bierenbaum called her therapist and others on that day asking if they had seen her. The same compassionate staff continues to provide personalized service in the same warm, caring atmosphere you have come to expect. 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. 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. On February 25, 2008, the district court denied the petition without conducting an evidentiary hearing. Proactive and Reactive LiesDuring the trial, defense lawyer David Lewis denounced theprosecutions murder theory as guesswork since there are noeyewitnesses or physical evidence in the death of Katz-Bierenbaum.Lewis said Katz-Bierenbaum is probably dead, but he stated thatnobody knows how or why. Katz did not keep her regularly scheduled psychotherapy appointment on July 8. The videotapes were subsequently offered into evidence without objection. 28 U.S.C. His specialties include Emergency Medicine, Family Medicine. For this strategy, the defense had no particular need to elicit evidence that Katz was a regular as opposed to occasional user. 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. The prosecution called Katz's sister Alayne as a rebuttal witness. Bierenbaum told Caruana that he had hired a private investigator who had found evidence that Katz was in California. He only stopped when she was dead We think about the intimacy of strangulation. ''The conversation lasted 30 seconds, and he wasn't as upset as I would have expected.''. 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. 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. That is one of the theories that could have happened. On Saturday, July 6, 1985, Katz kept a follow-up appointment with her gynecologist, and made a further appointment in December. The performance was videotaped, and the jury was shown the tapes. 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. Looking back, people see sinister clues in the fact that his socks were mismatched, his airplane a mess. gofrom the doctor to the pharmacist,primary care physician to a specialist, or a radiology center to the emergency room. ''We're so sparsely populated around here,'' he said, ''we even have to import our criminals.''. The sufficiency of the evidence, however, is not before us. I, 1881, Oct. 2, 2000. The Appellate Division ruled that the statements bore numerous hallmarks of reliability: She was speaking spontaneously; she repeated the statements separately to various people in her life; her statements about the troubled side of their marriage were a natural consequence of corroborated facts about their marriage; she was, by all indications, in good mental health; there appears no reason for her to have fabricated the matters she discussed at the time of her utterances; and her statements largely concerned private matters that some would be embarrassed or otherwise reluctant to disclose. The trial court gave a limiting instruction to that effect after each witness's testimony and at the close of trial, and admonished the jury that they were not to take this testimony as proof that Bierenbaum had acted in accordance with the statements, or as evidence of propensity. About three weeks after Katz disappeared, Bierenbaum began an affair with Karen Caruana, a nurse educator at Maimonides Medical Center where Bierenbaum was a surgical resident. vol. Later in his summation, he returned to the drug-related disappearance theory: Segalas-they did a little bit, what they thought was cocaine that was left in the house. 2. 2 reviews. 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. 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. 20 by Justice Leslie Crocker Snyder. Dr. Robert Bierenbaum . 2254 in the United States District Court for the Southern District of New York. Decker, 912 N.E.2d at 1043 (quoting People v. Taranovich, 335 N.E.2d 303, 306 (N.Y.1975)). Defense counsel did not object to the instruction or request a stronger one. June Sherman lived directly below the Bierenbaum apartment. The state court's determination that the cross-examination of Segalas was not constitutionally deficient was not an unreasonable application of Strickland. ''I have no idea what you've done in the past, you have no idea what I've done,'' Mr. Hussey concluded last week, after the verdict, seated in a restaurant near Minot International Airport, which has one baggage carousel. It's still wrong and you didn't face it.'' He does not tr[y] to defuse the situation. VI. Robert Bierenbaum (born July 22, 1955) is an American former plastic surgeon and convicted murderer. 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. The Appellate Division concluded that the trial court's cautionary instructions about the prior assault evidence were legally satisfactory and adequately protected Bierenbaum's right to a fair trial. This limited search was conducted on September 30; nevertheless at that time Dalsass looked around the apartment to see if he could detect any evidence that a crime had been committed there. 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. This Court granted a certificate of appealability on September 23, 2008. III, 2820, Oct. 12, 2000. 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. 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. Mr. Hussey recalled: ''He looked like death warmed over, and I said to him, 'Bob, you look sick.' . They later moved to. Maryann DeCesare, a friend, testified that Katz told her that she was afraid of Bierenbaum's temper and that he had threatened her. With bitter winters and little company, residents here have little use for moral condemnation. On that point we agree with the Appellate Division, the post-judgment motion court and the district court that the contents of the videotape[s] depict a scenario that was anything but speculation. Before leaving town, Dr. Bierenbaum stopped in at Pietsch's to pay a bill. See Bierenbaum, 748 N.Y.S.2d at 589. 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. ''He'd come up to you if he saw a mole, and he would touch it,'' Mr. Hussey said. The passage quoted above demonstrates that the Appellate Division found particularized guarantees of trustworthiness in the challenged statements. Had the defense called Alvarez, and had he testified in accordance with his affidavit, the jury would have been presented with the testimony of the relief doorman, who remembered not only the departure of a particular tenant, but what she was wearing on an unremarkable Sunday fifteen years before the trial. See Williams, 529 U.S. at 413; Ramdass v. Angelone, 530 U.S. 156, 166 (2000); accord Kennaugh v. Miller, 289 F.3d 36, 45 (2d Cir.2002). . Katz told Feis that she intended to use the letter as leverage in divorce proceedings by threatening to use it to ruin his career. Bierenbaum then filed a petition for writ of error coram nobis in the Appellate Division contending that appellate counsel had provided ineffective assistance. To him, the case against Dr. Bierenbaum seems ''so over-circumstantial'' that he thinks maybe an appeal would succeed. Anyone can read what you share. Dr. Robert Bierenbaum is a health care provider primarily located in Grand Forks, ND. That is not disputed. ''I feel grief, like someone has died,'' he said. Bierenbaum, 748 N.Y.S.2d at 583-84. This was not the first time Bierenbaum had choked her, but it was the first time that she lost consciousness. 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. Regardless of defense counsel's error in referring to the search as a forensic search, the prosecution would also have elicited the fact that Bierenbaum lied to Caruana about the search. He knew in July of 1985, what it would take to kill her. 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. '', 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. IV, 3194, 3227-28. The affair began while Bierenbaum was vacationing in South Hampton on Long Island during the month of August, and lasted about six weeks. 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. 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. Rochester RHIO makes your information available wherever you Nontestimonial statements therefore do not implicate the Confrontation Clause. 1200 S Columbia Rd, Grand Forks, ND, 58201. Feb. 25, 2008). 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. 9. [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 United States Supreme Court decisions in Crawford and Davis v. Washington, 547 U.S. 813 (2006), confined the scope of the Confrontation Clause to testimonial statements. 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. Robert BIERENBAUM, Petitioner-Appellant, v. Harold D. GRAHAM, The Superintendent of Auburn Correctional Facility, Andrew Cuomo, Attorney General State of New York, Respondents-Appellees. Dr. Bierenbaum graduated from the Albany Medical College in 1978. 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. 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. Dr. Baran denied that she'd had such a conversation with Bierenbaum and denied that Katz was suicidal. The fact that this defendant allegedly committed a prior bad act is no proof whatsoever that he possessed a propensity or disposition to commit the crime charged in this indictment or any other crime. She kept an appointment with her hairdresser, and met with a close friend that afternoon for a couple of hours. 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. The rule applies with equal force whether the state-law ground is substantive or procedural. Lee v. Kemna, 534 U.S. 362, 375 (2002). Was she killed by drug dealers? ''The guy was super nice,'' said Jason Naylor, a fellow pilot. If you are uninsured or underinsured, or need a referral to a doctor or dentist, call our Affordable Health Line at 585-328-7000. The motion was denied on September 6, 2005, and leave to appeal was denied on January 12, 2006. 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. 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. 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. In determining whether prosecution has been unduly delayed, a New York court will balance five factors: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay.. '' But when they learned he was a plastic surgeon and was checking for cancer, they softened. He has 45 years of experience. Please try again. ''We're from North Dakota and we trust people,'' said Mike Berg, a retired pharmacist and former head of the Rotary Club, who flew to Mexico with Dr. Bob. Katz had an affair with Anthony Segalas, an investment banker, during the summer of 1984 and the spring of 1985. 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. Surgery, Internal Medicine. Here, Bierenbaum expressly invoked the Confrontation Clause to both appellate courts. He contends that the videotapes lacked any foundation in the evidence and were based on speculation. On March 17, 2006, Bierenbaum filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. He works in Grand Forks, ND and specializes in Surgery and. that denied his petition for a writ of habeas corpus pursuant to 28 U.S.C. 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. Claim your profile (701) 780-5260 . The prosecution argued:What does he do? 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. Bierenbaum argued undue pre-indictment delay to the state court in his motion to set aside the judgment. In 1998 the investigation was reopened, and the body was exhumed and determined by DNA comparison not to be Katz. As physician and friend Marvin proved himself a real . Katz moved out and lived for a time with her grandfather. More recently she talked of moving in with a girlfriend in Connecticut. Leave to appeal to the New York Court of Appeals was denied on March 10, 2003. In another conversation Katz told DeCesare that she and Bierenbaum had discussed the Claus von Bulow case, and that Bierenbaum had said the problem with the case was that von Bulow left evidence and that he would leave no evidence. Pro. I want to remind you that every individual has a right to an attorney and you can draw no negative inference from the fact that someone hires an attorney. He received a medical degree at Eastern Virginia Medical . Find Dr. Biernbaum's address and more. 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. Medical School / Professional School: 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, 44, clasped his hands in front of him and loweredhis head when the verdict was read by the jury forewoman inManhattan State Supreme Court. 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. 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. On appeal to the Appellate Division, First Department, Bierenbaum argued that his guilt was not proven beyond a reasonable doubt. 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. 7. 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. 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. Turn on desktop notifications for breaking stories about interest? 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. He faces 25 years to life and is to be sentenced on Nov. 20. We're a team that goes into neighborhoods working to stop the spread of HIV through education, prevention, and testing events. Today, local rumor has it, the federal witness protection program relocates people here. 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.