People v. Bierenbaum

• Citation: 301 A.D.2d 119,748 N.Y.S.2d 563
• Court: New York Supreme Court Appellate Division
• Decision Date: 22 October 2002
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>ROBERT BIERENBAUM, Appellant.

301 A.D.2d 119

748 N.Y.S.2d 563

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.ROBERT BIERENBAUM, Appellant.

MARLOW, J.

October 22, 2002.

Mark Dwyer of counsel (Robert M. Morgenthau, District Attorney, New York County, attorney), for respondent.

Diarmuid White of counsel (Brendan White on the brief; White & White and Scott H. Greenfield, attorneys), for appellant.

ANDRIAS, J.P., SAXE, BUCKLEY and FRIEDMAN, JJ., concur.

OPINION OF THE COURT

MARLOW, J.

A jury convicted Robert Bierenbaum of second-degree murder based on circumstantial evidence that on July 7, 1985 he intentionally killed his wife, Gail Katz Bierenbaum, in their Manhattan apartment; transported her body to a New Jersey airport the same day; loaded it onto a small private plane; and piloted it over the Atlantic Ocean where he discarded her remains. Neither her body nor her remains has ever been found.

On this appeal, we address the following four issues:

First, defendant contends the trial evidence is legally insufficient and the verdict is against the weight of the evidence.

Second, defendant complains that the trial court erroneously allowed the jury to learn (a) of the existence and nature of a letter written to his wife by his psychiatrist warning her of the danger defendant posed to her; and (b) of several of her verbal statements to various people describing defendant's threatening remarks and otherwise negative behavior.

Third, he argues that the Trial Justice should have precluded, and that the prosecutor inappropriately used, evidence that defendant choked his wife rendering her unconscious in the autumn of 1983, including evidence of her statements to her cousin over the phone, which the court admitted as "excited utterances."

Fourth, he urges that the court incorrectly allowed the People to introduce opinion testimony by a medical examiner, and demonstrative and opinion evidence by a police pilot and two other experts, that it is possible for a surgeon/pilot, alone, to dismember a 110-pound body in 10 minutes, load a 36-inch-long package containing the body's disarticulated remains onto a small airplane, and, also while alone in the air, throw it into the ocean.

We agree with only one claim of error. However, because we find it harmless, we affirm.

THE CIRCUMSTANTIAL EVIDENCE

That the victim died July 7, 1985 is conceded. That defendant was the last person who saw her, and who was known to have been alone with her until 11:00 A.M. that day, cannot be persuasively disputed on the basis of this record. Contested are the way and reason her life ended, the way her killer disposed of her body immediately thereafter, and her killer's identity and state of mind.

The trial testimony and physical exhibits revealed the following:

In 1982 defendant and the victim married. From the beginning, they quarreled frequently. No witness disputed that their discord and fighting reached a level characterized by threats against the victim and at least one previous violent act by defendant against her. Defendant essentially admitted as much, and was heard to say, more than once, that during one argument there was "physical contact," that their last argument was "explosive" and "severe," and that he was frustrated in his marriage because they argued constantly. He also said that he hated the victim so much, and that she would get him so upset, that he wanted to kill her.

They both complained many times to many people that their marriage was loveless and their life together was stormy. On one occasion a coworker overheard defendant in a common work area arguing loudly with his wife over the telephone. The victim would complain also that defendant tried to exert excessive control over her, and she expressed fear of him more than once. The record is replete with evidence depicting events and statements which motivated the victim to end her marriage. In 1984, she was so unhappy that she consulted a divorce lawyer.

One day in the fall of 1983, at about 3:00 P.M., the victim called her cousin, Hillard Wiese, an attorney, at his office. "[S]peaking in very hushed tones and very rapidly" and "sound[ing] extremely upset," she told him that she and defendant had a fight the night or day before. She said that he, not for the first time, had choked her, although this was the first time she was thereby rendered unconscious. When she came to, he begged her forgiveness and promised it would never happen again. She told Wiese she was speaking quickly and softly because she was expecting defendant. She called Wiese again the following day to let him know she took his advice and was staying with her grandfather.

On another occasion, while the couple was watching a television program about the von Bulow murder case, defendant told the victim that the "problem with Claus von Bulow is that he left evidence and [defendant] would not leave evidence." The testimony revealed that the victim perceived this statement as a threat.

The trial record also makes it clear—notwithstanding the victim occasionally vacillated about terminating her marriage—this couple was on the verge of divorce in July 1985. While married to defendant, the victim had an affair with at least one other man; just before the day she disappeared she stated to a friend she was about to tell defendant she wanted a divorce; she had borrowed money to prepare to leave; she said she was seeing one or two other men and that she loved one of them; she was looking for an apartment and was seen with circled newspaper ads for apartment rentals the day before she disappeared and her friend had offered her a place in Connecticut to stay while she got herself resettled. Defendant himself said his wife told him she wanted a divorce.

The proof is most telling that on the very day the victim disappeared, she intended to confront defendant with her decision to leave him. She was also determined to make it clear to defendant that she would use a letter, written to her by his psychiatrist warning her of the danger he posed to her, in order to humiliate him with his professional peers should he refuse to meet her divorce settlement demands. To that same end, she also planned to threaten to expose his and his father's alleged multimillion-dollar Medicare fraud.

At the time the deceased disappeared, defendant was a surgical resident at Maimonides Hospital and a licensed pilot. On July 7, 1985, at 4:30 P.M., he rented a Cessna 172 plane at Caldwell Airport in Fairfield, New Jersey. He returned it after one hour and 56 minutes, giving him time enough to fly round trip approximately 165 miles over a part of the Atlantic Ocean. From the rental office's vantage point, one would not have been able to see defendant on the tarmac getting ready to board— and possibly load luggage or other items onto—the plane, which was in a position readily accessible by automobile for such purposes.

Later the same day, around 6:30 P.M., defendant arrived alone at his sister's Montclair, New Jersey home for his nephew's birthday party. There he told his father that he and his wife had an argument earlier that day, that she left for Central Park, and she had not returned by the time he left Manhattan. Significantly, he omitted telling his father that he had flown an airplane for nearly two hours that very afternoon.

That evening, he went to the home of his friend, Dr. Scott Baranoff. From there, he telephoned his apartment more than once. A seemingly distraught defendant also told Baranoff about the argument, adding that his wife had not yet returned after having left their apartment wearing shorts, a halter top and sandals. However, he again omitted to mention that he had rented and flown an airplane for almost two hours that same afternoon, a consistent omission whenever he told others about the events of July 7.

When defendant returned to their Manhattan apartment, he telephoned his wife's friend and former psychology teacher, Dr. Yvette Feis. He told her of the argument and that the victim had left for Central Park with a blanket for sunbathing. Defendant and Dr. Feis spoke daily that first week, but during the first few calls she urged him to contact the police and to speak to the doorman.

At 9:00 P.M. the next night (July 8), he finally spoke to Detective Vergilio Dalsass, telling him that his wife left their apartment at 11:00 A.M. on July 7 to sunbathe in Central Park wearing pink shorts and a white t-shirt. He stated he had remained behind in their apartment until 5:30 P.M. before leaving for his sister's New Jersey home.

Before ending that July 8 interview, Detective Dalsass repeated his appeal to defendant to leave out nothing, saying:

"I pretty much told him that any information that will assist in finding Gail was rather important. He was the individual that las[t] saw her in the apartment. Any friends, relatives, anything that could assist me would certainly be very beneficial in locating her as quickly as possible."

Defendant offered that Gail had, years earlier, attempted suicide. Yet, he omitted to tell the detective that he was a pilot and that on the previous afternoon he rented a plane from a New Jersey airport between 4:30 P.M. and 6:30 P.M. for a two-hour flight. He also failed to mention to both Detective Dalsass and later to Detective Thomas O'Malley—as he had indeed told others—that he allegedly left his apartment Sunday afternoon to search for his missing wife in Central Park and there allegedly found her towel and suntan oil.

For the entire week immediately following the victim's disappearance, defendant failed to return Detective Dalsass' approximately eight telephone answering machine messages. However, on July 10, he called Detective O'Malley inquiring how the investigation was proceeding and met with him on July 13. During that meeting he told O'Malley that he drove his father's Cadillac to his sister's New Jersey home on July 7, instead of his own [smaller] Datsun, as his car allegedly had mechanical problems.

Defendant...