Petition for Writ of Certiorari — Bierenbaum v. New York
Supreme Court brief2003
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OFFICE OF THE cirpK
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ROBERT BIERENBAUM,
Petitioner,
V. ;
STATE OF NEW YORK,
Respondent.
*
On Petition For A Writ Of Certiorari To The
Supreme Court Of The State Of New York,
Appellate Division, First Department
Sd
PETITION FOR A WRIT OF CERTIORARI
¢
: DIARMUID WHITE
Counsel of Record
BRENDAN WHITE
WHITE & WHITE
148 East 78th Street
New York, NY 10021
(212) 861-9850
Attorneys for Petitioner
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTION PRESENTED
1. Whether the Confrontation Clause was violated at
Petitioner’s murder trial — 15 years after his wife’s disap-
pearance — when her out-of-court statements to friends,
providing evidence of Petitioner’s guilt, were admitted as
so-called “non-hearsay background evidence” or “to explain
... the state of this marriage and both parties’ state of
mind” during the marriage, without a limiting instruction
that the statements were not to be considered for the truth
of the matters asserted?
SS eS eee
li
PARTIES TO THE PROCEEDING BELOW
The parties to the proceeding in the court whose
judgment is sought to be reviewed were as in the caption.
: ili
TABLE OF CONTENTS-
Page
Question Presented ............:ssssesessrseeseeserenteeeneetnees i
Parties to The Proceeding Below ..........:-:-:sesssssseeeeees il
Table of Authorities ............:cccssseceeseeseeeereaneeenneeeeeeeees iv
Opinions Below...........::cssssesessseereeeseeeeeessenncenaensesnes 1
Jurisdiction ...............sccessccsscecesssecenssereeecsaneseesasccsenens 1
Constitutional Provisions Involved............:::+sssee
Statement of the Case ..........cccseeeseseeeeeeeenenteeeeeeneeseens 2
Reasons for Granting the Petition .............::::::sssesee+ 11
ConclusiON .............cccsssscvecssessccseneccseceenensseseaonsneseesees 21
APPENDIX
Opinion of the New York Supreme Court, Appellate
Division, First Department, Affirming Judgment
Of CONVICCION...........ccccccceeeeenseeeeeceecceesseeseeeesseeesener eens App. 1
Certificate of the New York Court of Appeals
Denying Leave to Appeal ..........:sesseseesseesenensenes App. 48
iv
TABLE OF AUTHORITIES
Page
CASES
Bains v. Cambria, 204 F.3d 964 (9th Cir. 2000)................ 15
Hayes v. York, 311 F.3d 321 (4th Cir. 2002)... eee 16
Idaho v. Wright, 497 U.S. 805 (1996)................. 4, 11, 18, 20
Lilly v. Virginia, 527 U.S. 116 (1999) ............. ccc eeeeseeeceeeee 16
Mutual Life Insurance Company v. Hillmon, 145
Fis GI IE cittictensinneinnsspieneiacnainieniaieabenktalas 10, 15, 16
Ohio v. Roberts, 448 U.S. 56 (1990).................cccescesesseeeeees 11
People v. Bierenbaum, 301 A.D.2d 119, 748 N.Y.S.2d
SO Se Bs PEED si bvedacenviiceviteetivaunsanarncebaieonsiaamneees 1
People v. Bonilla, 251 A.D.2d 82, 674 N.Y.S.2d 23
CE Se st vinincdnseierndidiencanasabnicnnearinueaniababiiendss 17
People v. LaFrance, 182 A.D.2d 598, 583 N.Y.S.2d
ee OR LN TT OT 17
People v. Laverpool, 267 A.D.2d 139, 700 N.Y.S.2d
Ee BE: I aititeinanicticeiedcnethndrenunes: 17
People v. Linton, 166 A.D.2d 670, 561 N.Y.S.2d 259
CR ee Me iaiisieiinnssipsttesabsscnseiciniborietc isadisiauicaadiuns 17
People v. Nieves, 67 N.Y.2d 125, 492 N.E.2d 109,
EF ee Bens iiiaineunnsbiiciepinhsiebineciiaintateinsanainin 7
People v. Reynoso, 73 N.Y.2d 816, 534 N.E.2d 30,
Gee 85, Ee Be iiitiirteniccseinneeneos 15
People v. Rivera, 96 N.Y.2d 749, 748 N.E.2d 1060,
FE Fe IE I eens acecianiaicdioee vicietsavininecendiaedetahdes 17
People v. Shorey, 172 A.D.2d 634, 568 N.Y.S.2d 436
Ce OIE, Fe ieinivacirsoeccuintientntcaminaisinabedan 17
Ryan v. Miller, 303 F.3d 231 (2d Cir. 2002)................ eee 11
v
TABLE OF AUTHORITIES — Continued
Page
Shepard v. United States, 290 U.S. 96 CRE sisecccissees 13, 15
Tennessee v. Street, 471 U.S. 409 CTD sc crvsesesesturnaars 11, 13
United States v. Burton, 937 F2d 324 (7th Cir.
TOD) ...<csrveosesosssssessenseoseonenennsonssognoosonenseousesonssonennennenneness 13
United States v. Evans, 216 F.3d 80 (D.C. Cir. 2000)........ 14
United States v. Pedroza, 750 F2d 187 (2d Cir.
BOGE) vasccsvasiernvererssvnsacronaiosnanssensonesnonsiverseesnstennniyeaeeranntenes 12
United States v. Reyes, 18 F.3d 65 (2d Cir. |) | ene 14
STATUTES AND RULES :
DB U.S.C. § 1257......sccssccsssscsecssscsvensssecsnssesseescescesecenensesorsoss 1
Fed. R. Evid. 803(3) ........:sscssessesssessesreesseressessrsensensenaec aeons 15
MISCELLANEOUS
Michael M. Martin, “Evidence: Indirect and Back-
ground Hearsay,” New York Law Journal (Oct.
DA, 2OOD) ....osnsessenecossorovessvonsnsnansncnsnonvessvonsasuonrensnncsnooonsnens 11
1
PETITION FOR WRIT OF CERTIORARI
Petitioner prays for a writ of certiorari to review the
judgment of the Supreme Court of the State of New York,
Appellate Division, First Department, in this case.
¢
OPINIONS BELOW
The Supreme Court of the State of New York, Appel-
late Division, First Department, (“Appellate Division”)
affirmed the judgment of conviction of the Supreme Court,
New York County, in an opinion reported at People v.
Bierenbaum, 301 A.D.2d 119, 748 N.Y.S.2d 563 (1st Dept.
2002), and reprinted in the appendix at App. 1.
ae
Vv
JURISDICTION
The judgment of the Appellate Division was entered
on October 22, 2002, and Petitioner’s application for leave
to appeal to the New York Court of Appeals was denied on
March 10, 2003. (App. 48.) This petition for a writ of
certiorari is filed within ninety days of the order denying
the application for leave to appeal, in compliance with
Rule 13 of this Court’s rules. The Court’s jurisdiction is
invoked under 28 U.S.C. § 1257.
,
vv
CONSTITUTIONAL PROVISIONS INVOLVED
Unites States Constitution, Amendment VI, provides
in pertinent part:
2
In all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the
witnesses against him....
Unites States Constitution, Amendment XIV, provides
in pertinent part:
[NJor shall any State deprive any person of
life, liberty, or property, without due process of
law.
ie
v
STATEMENT OF THE CASE
1. In 2000, a jury found Petitioner guilty of murder-
ing his wife, Gail Katz Bierenbaum, who had not been
seen since 1985 and whose death was presumed, although
no body was ever found and there were neither witnesses
to, nor forensic evidence of, any homicidal act. The theory
of prosecution, based wholly on circumstantial evidence,
was that on July 7, 1985, Petitioner, a surgeon and ama-
teur pilot, murdered his wife in their Manhattan apart-
ment — on the 12th floor of an Upper East Side high-rise
building with 442 apartments — transported the body that
afternoon to an airport in New Jersey, rented a small
plane, flew it over the Atlantic Ocean and dumped the
body from the plane.
The defense theory was that Petitioner and his wife
had an argument in the late morning of July 7, 1985, she
walked out of the apartment in a huff to go to Central
Park to cool off, and she never returned to go with Peti-
tioner to a family party in New Jersey that evening,
suggesting that she may have met a stranger in the park
and fallen victim to foul play. The defense stressed that it
was not plausible that Petitioner, in the middle of the day,
3
carried a 110-pound body unnoticed from the 12th floor
apartment, exited the building without attracting the
doorman’s or anyone else’s attention, and took the body to
a car. Nor had anyone seen Petitioner load a body or a
package into the airplane he rented that day in New
Jersey.
9. Although under suspicion from the date of his
wife’s disappearance in 1985, Petitioner was not charged
with the offense until 1999. At trial in 2000, a long series
of friends and relatives of Petitioner’s wife testified for the
prosecution that she had spoken of an unhappy marriage
and had told them of various statements Petitioner assert-
edly made to her. For example, prosecution witness Mary-
ann DeCesare, a friend of Petitioner’s wife since they were
students in college, testified over prior objection as follows:
Q. Did she ever recount to you what the de-
fendant said he’d do if she left him?
A. Yes.
Q. And what was that?
A. He said he would kill her.
Q. And this was a time after you graduated
[in June 1984]?
A. Even before that. Whenever there were
discussions about whether or not she was going
to leave he told her that she couldn’t leave him.
Q. Did Gail Katz-Bierenbaum ever recount
to you a conversation she had with the defendant
about the VonBulow case?
[DEFENSE COUNSEL]: Objection, Judge.
THE COURT: I am going to allow it.
4
A. Yes. One of the time [sic] when Gail was
talking to me about what I thought, she told me
that she had seen the movie on TV, her and Bob,
and that Bob had said that the problem with
Klaus VonBulow is that he left evidence and he
would not leave evidence. (T 2222-23)
In overruling the defendant’s double-hearsay objections’ to
this testimony, the trial court stated:
I understand your point. I think it is a good
technical point. However, applying the various
legal doctrines I have applied to this different
context ... I find I will allow in Gail Katz Bier-
enbaum’s statements to this witness that if she
ever left the defendant he would strangle [sic]
' The court had just noted, when defense counsel interposed
hearsay objections — including that there was no basis for admissibility
as “state-of-mind” evidence — the following:
As I said, we have litigated all these hearsay exceptions
at length. Be they admissions, future intent, exceptions. I
think the record is replete both in writing, in terms of
memoranda of law and my decisions on the record. I am go-
ing to incorporate everything by reference. You could do the
same. (T 2205)
Petitioner had expressly invoked the Confrontation Clause during the
litigation. See, e.g., Defendant’s Memorandum of Law in Response to
The People’s Motion Jn Limine, dated June 16, 2000, at 6-7 (N.Y. App.
Div. Appendix at 63-64) (invoking Sixth Amendment right to confront
witnesses, citing Idaho v. Wright, 497 U.S. 805, 816 (1990), for proposi-
tion that hearsay must fall within firmly rooted exception or be
supported by a showing of particularized guarantees of trustworthiness,
and noting that “[t]he evidence which the People intend to introduce
allegedly comes from the mouth of Gail Katz Bierenbaum through the
individuals the People intend to call as witnesses at trial”).
Thus, the question presented in this Petition is amply preserved for
review.
5
her.... The fact that the defendant had threat-
ened to kill her and that he had discussed the
VonBulow case with her and the language we
just heard, | find that in balancing it the proba-
tive value far exceeds the prejudice. (T 2206-07)
The “various legal doctrines I have applied to this
different context” were not further described at that point,
but are reflected in an instruction which the court gave
the jury following the testimony:
The statements attributed to Gail Katz Bier-
enbaum and alleged to be those of Robert Bier-
enbaum, the defendant, concerning various
matters including the VonBulow case are offered
for various limited purposes. They are offered to
show the — well, the statements about her rela-
tionship and the state of the marriage are offered
as background to show the state of the marriage
and the relationship and as probative of and lim-
ited to the defendant's intent, identity, motive in
the case, and some of these statements, for ex-
ample, concerning the VonBulow case are offered
to show the alleged state of mind of Gail Katz
Bierenbaum. (T 2250; see also T 3266-67.)
The trial court never mentioned, here or elsewhere, that
the statements were not admitted for their truth.
The court had ruled on a number of occasions before
and during trial that challenged statements were admissi-
ble as “prior bad acts” evidence under New York’s
“Molineux rule” for purposes of “background” or to show
the “state of the marriage.” For example, after permitting
the prosecutor to elicit from friends and the sister of
Petitioner’s wife that she had discussed Petitioner's “future
potential for violence toward her” and a psychiatrist’s letter
to her in that regard, the trial court instructed the jury:
6
I just want to remind you that I have allowed in
the evidence relating to the state of the marriage
and any prior alleged incidents of violence, et cet-
era, for the reasons I delineated this morning.
They are offered for a limited purpose. They
are offered for background. They are offered for
the state of the marriage pursuant to the Peo-
ple’s theory allegedly of domestic violence and
they are allowed in as probative of the defen-
dant’s alleged intent, identity, et cetera, and with
that evidence and only that portion of the evi-
dence can only be used for that purpose. (T 2147)
In line with the trial court’s rulings, prosecution
witness after prosecution witness, all friends or relatives
of Petitioner’s wife, were permitted to recount her pur-
ported statements about “the state of the marriage.”
3. Prior to trial, in conjunction with its motion for
admission of “prior bad acts” evidence through testimony
recounting Petitioner’s wife’s statements, the People had
argued that such evidence did not violate the rule against
hearsay because “[tJhe proffered evidence is admissible as
non-hearsay background evidence.” See Peo. Memorandum
of Law dated May 30, 2000, at 16. (N.Y. App. Div. Appen-
dix at 51). Specifically, the People asserted:
Evidence that is admitted for background in-
formation, to complete the jury’ understanding
of the dismal state of the marital relationship,
and to provide context in which to assess motive
is not offered for the truth of the matter asserted
and is admissible as non-hearsay. (Jd.)
The People gave no authority for this sweeping proposition
— one adopted by the trial court and, it appears, by the
Appellate Division — except to deduce from New York state
7
cases admitting certain “prior bad acts” evidence in “do-
mestic violence” cases that “[a]lthough not addressed by
the court, ... such evidence had to be admitted as non-
hearsay background evidence.” (Id.)
4. On appeal, Petitioner contended, inter alia, that
he was “denied a fair trial by the improper admission of
widespread testimony recounting statements purportedly
made by Ms. Bierenbaum, which did not satisfy any
hearsay exception or the Confrontation Clause of the state
and federal constitutions.” See Def. App. Div. Brf. at 74
(Point II heading).
| Rejecting Petitioner’s claim, the Appellate Division
first noted, in the context of finding the trial court’s
cautionary instructions “fair and legally satisfactory” —
even though they failed to mention that the statements
were not admitted for their truth — that the prosecution
had introduced the statements “to explain two critical
factors, i.e., the state of the marriage and both parties’
state of mind” (App. 35), but the Appellate Division did not
otherwise state how or why these statements were non-
hearsay, fell within any recognized hearsay exception’ or
how or why they satisfied the “state of mind” hearsay
exception.
* New York does not recognize any “residual exception” to the
hearsay rule. See People v. Nieves, 67 N.Y.2d 125, 131, 492 N.E.2d 109,
112, 501 N.Y.S.2d 1, 4 (1986) (“we are not prepared at this time to
abandon the well-established reliance on specific categories of hearsay
exceptions in favor of an amorphous ‘reliability’ test, particularly in
criminal cases where to do so could raise confrontation clause prob-
lems”).
8
The Appellate Division, twice noting Petitioner’s
challenge to the “background” theory of admissibility (App.
35, 37), appears to have accepted that theory:
Defendant also argues that although this
contested hearsay information, emanating from
the victim, was admitted purportedly as legiti-
mate background evidence, there is no “back-
ground exception” to the hearsay rule, and
beyond that, this “background information” was
highly prejudicial, and, therefore, the trial justice
should have precluded it. We hold otherwise.
(App. 37; see also App. 35 (“disagree[ing]” with
Petitioner’s challenge to “notion of a background
exception to the hearsay rule”).)
Apparently conflating analytically distinct “prior bad
acts” and hearsay doctrines, at least in “domestic violence”
cases, the Appellate Division wrote immediately after the
last-quoted paragraph:
Most of the victim’s hearsay statements, in
one way or another, bespoke this couple’s marital
strife and unhappiness, a perception defendant
himself shared and repeatedly admitted. In a
domestic violence homicide, as this clearly is, it is
highly probative — quite often far outweighing
any prejudice — that a couple’s marriage was
strife-ridden and that defendant previously
struck and/or threatened the spouse-victim. In-
deed, it has also been held that such evidence in
like contexts is “highly probative of the defen-
dant’s motive and [i]s either directly related to or
‘inextricably interwoven’ with the issue of his
identity as the killer”. (App. 37; brackets the
court’s.)
9
The Appellate Division’s legal analysis did not refer-
ence the aforementioned double-hearsay testimony of
DeCesare that Petitioner’s wife “told me that she had seen
the movie on TV, her and Bob, and that Bob had said that
the problem with Klaus VonBulow is that he left evidence
and he would not leave evidence.”* However, in the section
of its opinion recounting the “circumstantial evidence” at
trial which, in the court’s view, established guilt, the
Appellate Division stated:
On another occasion, while the couple was
watching a television program about the VonBu-
low murder case, defendant told the victim that
the “problem with Claus VonBulow is that he left
evidence and [defendant] would not leave evi-
dence.” The testimony revealed that the victim
perceived this statement as a threat. (App. 4.)
The Appellate Division found that “the reliability of
this evidence [the out-of-court statements of the wife],”
* Petitioner proffered to the Appellate Division the results of
research establishing that “Reversal of Fortune,” the well-known
motion picture about the VonBulow case, was released in 1990, five
years after Petitioner’s wife’s disappearance, and no made-for-television
movie about the VonBulow case was ever broadcast. See Def. App. Div.
Brf. at 76 n. 44.
* The Appellate Division summarized that evidence as follows:
[Sleveral People’s witnesses [were allowed] to testify that
the victim had told them that, inter alia, her marriage was
stormy, that she was afraid of defendant, that he was very
controlling, that there was much verbal strife between
them, that her husband had occasionally made threatening
statements to her, that he once choked her in 1983 render-
ing her unconscious, that she had taken steps to prepare to
leave him, and that she had used and intended again to use
(Continued on following page)
10
initially a question for the [trial] court to resolve, is amply
supported by the record.” (App. 35.) The court opined that
the statements were “spontaneous”; they were “repeated”
to various people; they were a “natural consequence of
corroborated facts about their marriage”; she was “in good
mental health”; there was “no reason for her to have
fabricated the matters”; the statements concerned “private
matters” one would be embarrassed or reluctant to dis-
close; they were made to people close to her; and there was
no coercion or questioning by anyone, and no attempt by
her to curry favor. (App. 36.)
5. Following the Appellate Division’s affirmance,
Petitioner timely applied to the New York Court of Appeals
for leave to appeal the question whether admission of
background evidence through hearsay declarations denies
a defendant his right of confrontation. (Def. Leave Applica-
tion at 14.) Leave to appeal was denied. (App. 47.)
¢
the [psychiatrist’s] Turasoff letter to threaten him if he
failed to meet her divorce demands. (App. 34-35.)
To the extent that any of those out-of-court statements fall within an
exception to the hearsay rule as an expression of intent to engage in
future conduct, see Mutual Life Insurance Company v. Hillmon, 145
U.S. 285 (1892), and to the extent that that hearsay exception is a
“firmly-rooted” one, Petitioner would not contend that the statement’s
admission violated the Confrontation Clause, at least where the jury
was properly instructed.
11 z
REASONS FOR GRANTING THE PETITION
Out-of-Court Statements of Declarants Not
Subject to Cross-Examination, Offered to
Provide “Background,” to “Complete The
Narrative,” To Show “The State of The Mar-
riage” Or for Similar Purposes Tied to The
Truth of The Matter Asserted Are Not
Grounded in Any “Firmly-Rooted” Excep-
tion to The Hearsay Rule, And Conse-
quently, Where As Here There Is No
Adequate Showing of Particular Guaran-
tees of Trustworthiness, Their Introduction
at Trial Violates The Confrontation Clause.
<
i. The requirement of the Confrontation Clause that
an out-of-court statement may not be admitted unless it
“falls within a firmly rooted hearsay exception” or is
supported by “a showing of particularized guarantees of
trustworthiness,” Idaho v. Wright, 497 U.S. at 816, quoting
Ohio v. Roberts, 448 U.S. 56, 66 (1980), is easily compro-
mised when the statement is offered and admitted as
“background” evidence. If, as most often appears to be the
case,’ the statement is offered by the prosecution as “non-
hearsay background” evidence, Confrontation Clause
scrutiny may be avoided entirely, since non-hearsay
“raises no Confrontation Clause concerns.” Tennessee uv.
Street, 471 U.S. 409, 414 (1985).
® See generally Ryan v. Miller, 303 F.3d 231, 252-53 (2d Cir. 2002)
(discussing parameters of “background exception”); Michael M. Martin,
“Evidence: Indirect and Background Hearsay,” New York Law Journal,
at 3. col. 1 (Oct. 24, 2002).
a
%
i
12
But “background” and analogous terms are both
amorphous and expansive, and determining the nature,
scope and purpose of such evidence is elusive. Whether an
out-of-court statement offered as “non-hearsay back-
ground” evidence is in fact offered not for the truth of the
matter asserted, whether, even if it is not generally, a
portion of it is, and whether any proffered non-hearsay use
of the statement is outweighed by the likelihood that the
jury will use the statement as persuasive substantive
evidence of the defendant’s guilt are questions that sug-
gest the peculiar susceptibility to abuse that exists when
the theory of admissibility is “background evidence” or
similar nebulous formulations like “to complete the narra-
tive.” Statements like the following in United States v.
P:droza, 750 F.2d 187 (2d Cir. 1984), raise more —
than they answer:
When statements by an out-of-court declarant
are admitted as background, they are properly so
admitted not as proof of the truth of the matters
asserted but rather to show the circumstances
surrounding the events, providing explanation
for such matters as the understanding or intent
with which certain acts were performed.
Id. at 200. But statements offered to “show the circum-
stances surrounding the events” or to prove “intent” will
often hinge on the truth of the matter asserted, and
especially if a jury is not instructed otherwise.
The susceptibility to abuse is especially acute, as
discussed below, in the heated context of “domestic vio-
lence” prosecutions, at least in New York. The abuse is
palpable here, where widespread out-of-court statements
of Petitioner’s wife, devastating in content and effect,
regarding, in the Appellate Division’s words, “the state of
13
the marriage and both parties’ state of mind” during the
marriage (App. 35) were assertedly made over the course -
of three years and were recalled 15 years later. These
statements were offered by the prosecution as so-called
“non-hearsay background evidence” (N.Y. App. Div. Appen-
dix at 51) and were justified by the People in the Appellate
Division on the theory that “out-of-court statements may
provide trial jurors with ‘background’ information helpful
to their assessment of material points, without regard to
whether those statements are true.” (Peo. App. Div. Brf. at
70.) Yet no one, told this to the jury when the prosecutor
élicited the double hearsay testimony that Petitioner’s
wife “told me that she had seen the movie on TV, her and
Bob, and that Bob had said that the problem with Klaus
VonBulow is that he left evidence and he would not leave
evidence.” The only “material point” the jury could have
drawn from this statement is that Petitioner was guilty
because his wife’s body had not been found.
Unlike in Tennessee v. Street, where the jury was
pointedly told “not to consider the truthfulness of [the
declarant’s] statement in any way whatsoever,” 471 U.S. at
414-15, here the trial court at no time instructed the jury
that the out-of-court statements of Petitioner’s wife were
not admitted for their truth. See United States v. Burton,
937 F.2d 324, 327-28 (7th Cir. 1991) (in absence of limiting
instruction regarding truth of statements, they must be
taken as hearsay testimony). In short, here “[t]he voice of
the dead wife was heard in accusation of her husband, and
the accusation was accepted as evidence of guilt.” Shepard
v. United States, 290 U.S. 96, 98 (1933) (reversing convic-
tion because wife’s statements were inadmissible hearsay).
Indeed, despite the prosecution’s “non-hearsay”
theory, neither the trial court nor the Appellate Division
14
treated the statements as not proving the truth of the
matters asserted. To the contrary, the trial court repeat-
edly pointed to the statements’ probative value on the
issues of “the state of the marriage pursuant to the Peo-
ple’s theory allegedly of domestic violence” and “the
defendant’s intent, identity and motive,” “et cetera.” (T
2147, 2250, 3266-67) Cf. United States v. Evans, 216 F.3d
80 (D.C. Cir. 2000) (rejecting Government’s contention that
FBI Agent’s testimony, which came within no firmly rooted
exception, was not hearsay because not offered for its
truth but as merely “background” to give jury “a complete
picture of the events in question,” since “jury was effec-
tively told that it could use the evidence as proof of defen-
dant’s predisposition — i.e., for its truth”). And the
Appellate Division, referring to “the victim’s hearsay
statements,” stated that “[i]Jn a domestic violence homi-
cide, as this clearly is, it is highly probative — quite often
far outweighing any prejudice — that a couple’s marriage
was strife-ridden and that the defendant previously struck
and/or threatened the spouse-victim.” (App. 37; emphasis
added.) Thus, the evidence was hearsay — admitted, as it
was, for the truth of the matter asserted — but it satisfied
no hearsay exception, and most assuredly not a “firmiyv
rooted” one.
Certiorari should be granted to address the limita-
tions placed by the Confrontation Clause on “background”
statements and to address the serious risk that all or part
of such statements, particularly if inflammatory, may be
considered for their truth, all the more so when no instruc-
tion cautioning against such use is given.
2. Although the trial court and the Appellate Divi-
sion each made passing references to “state of mind,” see
also United States v. Reyes, 18 F.3d 65, 70 (2d Cir. 1994)
SE TAREE ae SNe RAL ae AY A SLY ada? 1. SEL
15
(appearing to use “background or state of mind” evidence
interchangeably), both courts also referred to the proba-
tive weight of the substance of the statements and neither ©
engaged in analysis showing that the statements truly met
the requirements of New York’s “state of mind” exception
to the hearsay rule. See People v. Reynoso, 73 N.Y.2d 816,
819, 534 N.E.2d 30, 30, 537 N.Y.S.2d 113, 114 (1988)
(“While such declarations may be received to show the
declarant’s state of mind at the time the statement was
made, they are not admissible to show the truth of past
facts contained in them”) (emphasis added). “State of
mind,” of course, is notorious as the hearsay exception
which litigants reach for when no other exception is
plausible. See, e.g., Shepard v. United States, 290 U.S. at
102-04, 106 (describing prosecutor’s attempt to infer a
state of mind from wife’s statements); Bains v. Cambria,
204 F.3d 964, 973 (9th Cir. 2000) (testimony of parents and
friends of decedent that he was in fear because of threats
from defendant’s family violated Confrontation Clause
because “not admissible under the exception to the hear-
say rule for statements of the declarant’s state of mind (or
any other exception) in order to prove the truth of those
beliefs”).
Moreover, putting aside an expression of intent to
engage in future conduct, see Mutual Life Insurance
Company v. Hillmon, 145 U-S. 285, a broad “state of mind”
exception to the hearsay rule is not, we submit, a “firmly-
rooted” one. See Fed. R. Evid. 803(3) (excepting from
hearsay rule “statement of declarant’s then existing state
of mind ... but not including a statement of memory or
belief to prove the fact remembered or believed”); Shepard
v. United States, 290 U.S. at 105-06 (“[dJeclarations of
intention, casting light upon the future, have been sharply
16
distinguished from declarations of memory, pointing
backwards to the past”); but see Hayes v. York, 311 F.3d
321, 325 (4th Cir. 2002) (indicating that state-of-mind
exception is firmly rooted, but citing only Hillmon). If, as
was stated in Lilly v. Virginia, 527 U.S. i116 (1999)
(plurality), “due to the sweeping scope of the label,” the
categorization of a statement as a declaration against
penal interest “defines too large a class for meaningful
Confrontation Clause analysis,” id. at 127 (citation
omitted), then the “sweeping scope” of the state-of-mind
label does so too.
3. The admission of out-of-court statements as so-
called “non-hearsay background evidence” appears to be
the rule rather than the exception in “domestic violence”
prosecutions in New York. As noted in the Statement of
the Case, the prosecution cited no authority providing
legal justification for excepting these statements from the
hearsay rule, but merely deduced from New York state
cases admitting certain “prior bad acts” evidence in “do-
mestic violence” cases that “[a]lthough not addressed by
the court, ... such evidence had to be admitted as non-
hearsay background evidence.” (N.Y. App. Div. Appendix at
51.) The prosecution’s observation is telling, because New
York courts have appeared to routinely admit such evi-
dence in domestic violence cases, whether as “background”
or to show “the state of the marriage,” without proper
regard for the hearsay nature of such evidence.
The Appellate Division here, stating that “[mJost of
the victim’s hearsay statements, in one way or another,
bespoke this couple’s marital strife and unhappiness, a
perception defendant himself shared and repeatedly admit-
ted” and “[iJn a domestic violence homicide, as this clearly is,
it is highly probative — quite often far outweighing any
wh will anim wnnenaldgalll
atte Le NAG ily, AMADA ARAN BED "
ed aid i Watters hig
17
prejudice — that a couple’s marriage was strife-ridden and
that defendant previously struck and/or threatened the
spovise-victim,” cited five such “domestic violence cases”
cases where evidence of a defendant’s prior violent acts or
threats had been held admissible by New York’s interme-
diate appellate courts. (App. 37.) Notably, New York’s
Court of Appeals, as here, denied leave to appeal in every
one of those cases. Indeed, with one arguable exception not
applicable here,° the New York Court of Appeals has ~
avoided the issue of so-called “non-hearsay background”
evidence and has permitted its widespread use in “domes-
tic violence” cases to proliferate. See People v. Laverpool,
267 A.D.2d 139, 700 N.Y.S.2d 139 (1st Dept. 1999), leave
denied, 94 N.Y.2d 904, 728 N.E.2d 988, 707 N.Y.S.2d 389
(2000); People v. Bonilla, 251 A.D.2d 82, 674 N.Y.S.2d 23
(1st Dept.), leave denied, 92 N.Y.2d 893, 702 N.E.2d 842,
680 N.Y.S.2d 57 (1998); People v. LaFrance, 182 A.D.2d
598, 583 N.Y.S.2d 835-600 (1st Dept.), leave denied, 80
N.Y.2d 905, 602 N.E.2d 239, 588 N.Y.S.2d 831 (1992);
People v. Shorey, 172 A.D.2d 634 568 N.Y.S.2d 436 (2nd
Dept.), leave denied, 78 N.Y.2d 974, 580 N.E.2d 426, 574
N.Y.S.2d 954 (1991); People v. Linton, 166 A.D.2d 670, 561
N.Y.S.2d 259 (2nd Dept. 1990), leave denied, 77 N.Y.2d
879, 571 N.E.2d 92, 568 N.Y.S.2d 922 (1991).
Certiorari should therefore be granted to review what
appears to be an ongoing and expanding use of hearsay in
* In People v. Rivera, 96 N.Y.2d 749, 748 N.E.2d 1060, 725 N.Y.S.2d
264 (2001), an assault prosecution, the court permitted the use of out-
of-court statements by bystanders to the arrest where the defendant
himself invited its admission by “creat{ing] a material gap in the
narrative that the People were entitled to explain.” 96 N.Y.2d at 751,
748 N.E.2d at 1061, 725 N.Y.S.2d at 265.
18
“domestic violence” prosecutions, at least in New York, in
contravention of the Confrontation Clause.
4. Because Petitioner’s wife’s statements did not fall
within any firmly-rooted hearsay exception, they were
“presumptively unreliable.” Idaho v. Wright, 497 U.S. at
818. This greatly understates the case with respect to the
double-hearsay statement that “she had seen the movie on
TV, her and Bob, and that Bob had said that the problem
with Klaus VonBulow is that he left evidence and he would
not leave evidence.” As noted above (at 9, n. 3), Petitioner
proffered to the Appellate Division the results of research
establishing that no movie about the VonBulow case could
have been broadcast prior to 1990, and, therefore, the
testimony about what Petitioner purportedly said to his
wife while watching the VonBulow movie on TV could not
have been true. The Appellate Division, nevertheless,
opined that the reliability of the out-of-court statements
was “amply supported by the record.” (App. 35; see pages
9-10, supra.)
The proponent of evidence presumptively barred by
the hearsay rule and the Confrontation Clause bears the
“burden of proving” that the evidence bears sufficient
indicia of reliability, Idaho v. Wright, 497 U.S. at 816, i.e.,
the evidence must be excluded absent “a showing” of
particular guarantees of trustworthiness. Jd. at 815. That
showing — an “affirmative reason” — must arise “from the
circumstances in which the statement was made,” and the
statement “must be so trustworthy that adversarial
testing would add little to its reliability.” Jd. at 820-21.
Here, DeCesare acknowledged that she had not told
prosecutors the VonBulow story “until the other night,”
i.e., in October 2000 at the time of the trial. (T 2241) This
19
was consistent with the prosecutor’s statement that, in
view of the court’s expansive Molineux rulings, “we have
gone back and ... interviewed and proved into [sic] state-
ments made by Gail Katz-Bierenbaum to her close friends
regarding the state of her marriage and conversations
with the defendant.” (T 2202-03) The “circumstances in
which the statement was made,” id. at 821, do not provide
a basis for overcoming the presumption of unreliability
here, as reference to DeCesare’s testimony itself demon-
strates:
Q. Did she ever recount to you what the de-
fendant said he’d do if she left him?
A. Yes.
Q. And what was thet?
A. He said he would kill her.
Q. And this was a time after you graduated
[in June 1984]?
A. Even before that. Whenever there were
discussions about whether or not she was going
to leave he told her that she couldn't leave him.
Q. Did Gail Katz-Bierenbaum ever recount
to you a conversation she had with the defendant
about the VonBulow case?
[DEFENSE COUNSEL]: Objection, Judge.
THE COURT: I am going to allow it.
A. Yes. One of the time [sic] when Gail was
talking to me about what I thought, she told me
that she had seen the movie on TV, her and Bob,
and that Bob had said that the problem with
Klaus VonBulow is that he left evidence and he
20
would not leave evidence. (T 2222-23; emphasis
added.)
Thus, Petitioner’s wife’s purported statements that
Petitioner variously said he would kill her, said she
couldn’t leave him, and said he would not leave evidence
as VonBulow did could not be considered so trustworthy
from “circumstances in which the statement([s] wl[ere]
made,” because those “circumstances” are very vague and
apparently refer to numerous purported conversations
over a period of years, not, for example, to a particular
conversation triggered by, or proximate in time to, a
precipitating event. Thus, the prosecution did not sustain
its burden of proving that the statements had particular
guarantees of trustworthiness.
The Appellate Division’s bases for finding the
statements reliable included that they were purportedly
“spontaneous” and “repeated” to various people — neither
of which is true of the VonBulow statement — that they
were a “natural consequence of corroborated facts about
their marriage,”’ and concerned “private matters” which
one would be embarrassed or reluctant to disclose.” (App.
" This Court, however, has rejected “the use of corroborating
evidence to support a hearsay statement’s ‘particularized guarantees of
trustworthiness,” noting that “[t]here is a very real danger that a jury
will rely on partial corroboration to mistakenly infer that trustworthi-
ness of the entire statement.” Idaho v. Wright, 497 U.S. at 823. Thus,
for example, evidence corroborating that the Bierenbaums had marital
difficulties could lead a juror to believe Petitioner made the statement
about VonBulow.
* Other claimed bases could be said of most out-of-court state-
ments: she was “in good mental health”; there was “no reason for her to
have fabricated the matters”; they were made to people close to her; and
(Continued on following page)
21
36.) Under the Appellate Division’s mode of analysis,
statements about the “state of the marriage” would always
be reliable in domestic violence cases, virtually creating a
“domestic violence exception” to the hearsay rule and
Confrontation Clause. Certiorari should be granted to
review whether such is the case.
4
. f
CONCLUSION
The petition for a writ of certiorari should be granted.
Dated: New York, New York
June 6, 2003
Respectfully submitted,
DIARMUID WHITE
Counsel of Record
BRENDAN WHITE
White & White
148 East 78th Street
New York, NY 10021
(212) 861-9850
Attorneys for Petitioner
there was no coercion or questioning by anyone, and no attempt by her
to curry favor. (App. 36.)
The Appellate Division did not address testimony of one of Peti-
tioner’s wife’s friends describing her as “needy,” “high maintenance,”
looking for “a white knight to come rescue her,” to “protect her and
make her life good” (T 2374-75) nor Petitioner’s argument that this
testimony described a person who would invent or exaggerate perils
and adversity.
App. 1
SUPREME COURT, APPELLATE DIVISION
First Department, January 2002
Richard T. Andrias, J.P.
David B. Saxe
John T. Buckley
David Friedman
George D. Marlow, JJ.
The People of the State of New York,
Respondent,
-against- 8
Robert Bierenbaum,
Defendant-Appellant.
x
Defendant appeals from a judgment of the Supreme Court,
New York County (Leslie Crocker Snyder, J.), ren-
dered November 29, 2000, convicting him, after a jury
trial, of murder in the second degree, and sentencing
him to a term of 20 years to life.
Mark Dwyer, of counsel (Robert M. Morgenthau, Dis-
trict Attorney, New York County, attorney) for respon-
dent,
Diarmuid White, of counsel (Brendan White, on the
brief, White & White and Scott H. Greenfield, attor-
neys) for defendant-appellant.
MARLOW, J.
A jury convicted Robert Bierenbaum of second-degree
murder based on circumstantial evidence that on July 7,
App. 2
1985 he intentionally killed his wife, Gail Katz Bier-
enbaum, 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 tn! 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 kis psychia-
trist 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,
z 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 exam-
iner, and demonstrative and opinion evidence by a police
pilot and two other experts, that it is possible for a sur-
geon/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.
App. 3
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 character-
ized by threats against the victim and at least one previ-
ous 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 co-worker 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,
App. 4
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 PM., the
victim called her cousin, Hillard Wiese, an attorney, at his
office. “[S]peaking in very hushed tones and very rapidly”
and, “sounding 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 uncon-
scious. 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
App. 5
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 multimil-
lion-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 fifty-six 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 defen-
dant 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 pur-
poses.
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
-
App. 6
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 om'tted 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 apart-
ment, he telephoned his wife’s friend and former psychol-
ogy 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 door-
man.
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 behizid in their apartment until
5:30 P.M. before leaving for his sister’s New Jersey home.
Before ending that July 8 interview, Det. Dalsass
repeated his appeal to defendant to leave out nothing,
saying:
App. 7
{ 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, at-
tempted 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 Det. Dalsass and later to Det. 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 Det. Dalsass’
approximately eight telephone answering machine mes-
sages. However, on July 10, he called Det. 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] Dat-
sun, as his car allegedly had mechanical problems.
Defendant called a number of the deceased’s friends
voicing expressions of concern that she may have harmed
herself, specifically attributing that notion to comments
made to him by her therapist, Dr. Sybil Baran. However,
Dr. Baran unequivocally denied she had ever said any-
thing like that to defendant or that she ever discussed
anything with him on that subject. To the contrary, iit was
her professional opinion, based on three years of treating
App. 8
the deceased once or twice weekly, that she was not
suicidal.
Defendant also suggested to others that his wife was
depressed and thus may have killed herself, disclosing also
that she had tried to commit suicide years earlier.
Furthermore, on July 14, while with his wife’s friend
Maryann DeCesare and a group of friends who were
searching for her and posting missing person signs in
Central Park and elsewhere, defendant quipped that he
thought his wife — who was missing for a full weck — was
on a shopping spree at Bloomingdale’s, adding, “You know
what a JAP’ she was.” When the search party returned to
the marital apartment — only seven days after his wife’s
disappearance — defendant volunteered to his mother-in-
law, in DeCesare’s presence, “I wonder why the cat got
sick. I had to take the rug out to be cleaned.”
Later on July 14, at a meeting at Det. Dalsass’ office
arranged by the deceased’s sister Aiayne Katz, and with
her parents and defendant’s father also present, Dalsass
interviewed defendant again face-to-face. The detective
specifically made it clear to defendant the importance of
omitting nothing in describing and detailing for him the
last three days his wife and he spent together:
I opened up with anything that might be instru-
mental in locating Gail. However minor it might
be it was very important. That anything said,
* “Offensive Slang A Jewish-American girl or woman regarded as
being pampered or overindulged” (American Heritage Dictionary of the
English Language 935 [4th ed 2000)).
App. 9
however insignificant it could possibly be used to
find her and locate her. . .
I told the defendant that he should give me a
narration of the time he spent over the last
weekend. Not excluding anything from the time
he last saw, going back as much as hecan.. .
I told him that any information is useful. Any-
thing could be helpful in locating Gail. Some-
thing that might be very innocent might develop
into a lead where she might be.
Notwithstanding these and other direct, uncompli-
cated admonitions, defendant omitted telling Det. Dalsass
that he and his wife had argued that Sunday morning.
However, in the July 8 interview, he had specifically
denied that the reason she left the apartment at 11:00
A.M. to sunbathe in Central Park was related to an
argument that morning. In addition, he had, the day
before (7/13), told Det. O’Malley that he and his wife had
argued the night before she “disappeared” and continued
arguing on the morning of July 7, prompting her to go to
Central Park at 11:00 A.M. to “cool off.”
He again omitted on July 14 to tell Dalsass — and
O’Malley as well the day before — that he was a licensed
pilot, rented a plane in New Jersey, and flew it for two
hours from 4:30 P.M. to 6:30 P.M. on July 7. Instead, he
falsely told both detectives, on a total of at least three
occasions, that he stayed in his Manhattan apartment all
day until 5:30 PM., emphasizing to Dalsass that he was
“positive” that “he left [his apartment] at 5:30 [P.M.].” He
also changed his claim that on July 7 he had spoken to the
doorman who, he had originally maintained, said he saw
the victim leave the building Sunday shortly after 11:00
A.M. In fact, the doorman did not speak to defendant July
App. 10
7 and could not recall seeing either defendant or the
deceased that day.
Further, he told Dalsass, in some detail, that on
Saturday afternoon, July 6, while he and Gail shopped at
various local stores, they argued about finances and other
matters which he refused to disclose. He said the day
ended with a Saturday evening, candlelight dinner in their
apartment, but he again declined to discuss whether this
interlude, described by him as romantic, helped resolve
the argument. Det. Dalsass expressed frustration over
defendant’s lack of cooperation and his delays in returning
phone calls and providing the police with information to
aid their search efforts.
Furthermore, although defendant told friends he
searched for the deceased in Central Park on July 7
between 11:00 A.M. and 5:30 P.M. and found her towel and
suntan oil in the park, he never shared that highly signifi-
cant detail with O’Malley or Dalsass on the two interviews
each had held with him during the seven days following
July 7. To them he insisted that he had remained in the
apartment until 5:30 P.M. without leaving at all.
The record also reveals that, although in July defen-
dant told Det. Dalsass he would respond to his request to
view the apartment, defendant in fact did not contact
Dalsass until September 12, 1985, and he did not permit
entry until September 30. When Dalsass arrived, the
crime scene unit was only allowed to search for finger-
prints, the victim’s diary and her address book. The
investigators were not permitted to check for blood or hair
samples or to search for “anything that we could document
that a crime took place.”
App. 11
In the days, weeks, months and years following his
wife’s disappearance, defendant made several inconsistent,
unfounded or otherwise suspect and incriminating state-
ments. Among them are the following examples: he told
Det. Dalsass that he and his wife had no argument on July
7, but he told Det. O’Malley that they argued on July 6
and continued on the morning of July 7. He told her
friend, Dr. Feis, that they had a severe argument the day
of her disappearance, more severe than he had originally
described to her and to various other people. He admitted
that during the July 7 argument he failed to heed his
psychiatrist’s advice to try to defuse the situation and that
this argument on the day she disappeared became “explo-
sive.” He told others that he and the victim argued just
before she left for Central Park “to cool off” ; another that a
private investigator he had hired found evidence she was
living in California probably with financial help from her
family; others that she had a drug problem, that she may
have disappeared with drug dealers and that she probably
was murdered by her “druggie friends”; others that she
may have run off to live with someone in the Caribbean;
and others that his missing wife was seen after July 7,
1985 “in some type of fugue state” in the Central Park
area and that it was unlikely she would return.
To one of his Southampton summer housemates in
July 1985, with a demeanor described as lacking in emo-
tion, he said he and his wife fought on J uly 7 and “she had
taken a towel and some suntan lotion and had gone to
Central Park. She wanted to cool off and he waited a
couple of hours and then he went looking for her and he
found the towel and the suntan lotion but she was gone.”
Also, shortly after she vanished, he told his Southampton
summer landlord that after his wife left he went through
App. 12
her drawers and found cocaine, prompting him to believe
she went off with drug dealers. To yet another, he de-
scribed his missing wife as a tramp, off living with some-
one else.
In addition, he made contradictory statements to the
police and others about whether he cleaned his living room
rug shortly after July 7, telling the police he did not, but
telling the victim’s friend, Dr. Feis, and others that he had.
A few weeks after his wife disappeared, defendant
began dating a nurse whom he knew from Maimonides
Hospital where they were employed. In late July or early
August, defendant asked her out, and they became inti-
mate on their first date. They saw each other socially
about five times over the next six weeks, wntil she
abruptly ended their relationship because, in her view, he
unjustifiably “attacked” her verbally one evening in a
restaurant. Early in that period, before they began dating,
and therefore significantly before the end of September, he
falsely told her the police had searched his apartment and
car and found him to be “clean.” Furthermore, she testified
that, during that early period, he expressed no concern
about his wife’s disappearance.
Thereafter, commencing in September 1985 and
continuing for a period just under one year, defendant
invited a medical student, Dr. Roberta Karnofsky, who
worked under his direct supervision at Coney Island
Hospital, to live with him in the marital apartment. They
began dating a month before she moved in. During their
entire relationship, she did not observe him make any
efforts to locate his missing wife.
Dr. Karnofsky also remembered a phone call defen-
dant received one morning at three o’clock, a few months
winscins Wahi’
App. 13
after she moved in. The call came from the police who
insisted that he immediately come in to view a woman
they had found at the New York Port Authority Bus
Terminal, someone they thought might be his missing
wife. After he hung up and she asked him whether under
the circumstances she should pack her things and vacate
the apartment, he told her not to worry because he
“doubt[s] it is Gail.” Although he had expressed some
apparent frustration because the police were insisting he
come to the terminal at that hour, he complied. When he
later returned, he tersely remarked to his roommate that
it was not his wife.
At one point while they lived together, on a day that
Dr. Karnofsky was angry or annoyed with defendant, and,
having heard a number of accusatory answering machine
messages directed at defendant, she confronted him “to see
what his reaction [would be]”:
What I said to him was, well, I think that if you
did this and if it really happened as some people
seem to think it did, that perhaps something
happened in the apartment and you intentionally
or unintentionally —- Gail was hurt, you could
have put her in one of those big flight bags or
duffel bags and carried her out of the apartment
since she was very small, put her in the back of
your car, drive out to the airport and thrown her
body out of the plane.
Defendant displayed no reaction, “[h]e didn’t say
anything.”
About midway through their one-year relationship,
defendant gave his approval to have Dr. Karnofsky’s
girlfriend, Sharon, also move into the apartment tempo-
rarily. She expressed this homicide theory to Sharon one
App. 14
day while defendant was not home. Together, the two
women looked for and found defendant’s flight log. In it,
they located a handwritten entry which appeared to have
been changed from the original notation of 7/7/85 to the
substituted date of 8/7/85. The jury saw this altered
document.
Another woman whom he dated in Las Vegas in 1995
asked him on their first date whether he had ever been
married. When he exhibited hesitation in responding to
her, she jokingly asked him if he had killed his wife.
Defendant was “pretty surprised and stunned” and asked
her what she knew. When she asked what had happened,
he told her his wife may have committed suicide or may
have met with foul play, as she had dated a variety of men.
He also disclosed to his date that in the past he had a bad
temper, but that it had gotten much better. Finally, she
observed that defendant was “meticulous,” even “compul-
sive,” about making flight log entries.
Through the testimony of several witnesses, including
four expert witnesses — New York City’s Chief Medical
Examiner, an experienced New York City Police Pilot, an
aviation safety inspector, and an airline transport pi-
lot/flight instructor/FAA flight test examiner — the People
established that it was physically possible for defendant, a
surgical resident and pilot, unassisted, to disarticulate a
recently expired body of the victim’s size (5ft. 3in. tall,
weighing 110 lbs.) within 10 minutes, pack her dismem-
bered torso and limbs into a flight/duffel bag and carry
them through an unmonitored rear exit of his apartment
building for a distance of two blocks to his garaged car.
They also proved that it was also feasible for him to so
transport the bag containing the decedent’s remains —
whether disarticulated or intact — to Caldwell Airport in
PAR, PRA A eC LSS Se
App. 15
Fairfield, New Jersey, and load it aboard a Cessna 172
plane directly from the car parked alongside on the tar-
mac, all unnoticed. They further established that it was
possible for defendant, also alone, to pilot the Cessna 172
over the Atlantic Ocean as much as 85 miles east of the
shoreline, maintain sufficient control of this relatively
easy-to-operate plane so as to singlehandedly throw these
human remains from the air into the ocean, and then land
back at the same airport, all in less than two hours of
flight time. Without objection, the prosecution showed the
jury a videotape specifically prepared for trial, demon-
strating how defendant could have accomplished this from
the point of loading the 110-pound body onto the plane,
discarding it over the ocean, and landing back at the same
airport.
DISCUSSION
1. Reasonable Doubt
In our role of reviewing the sufficiency of trial evi-
dence as an appellate court in a purely circumstantial
evidence case, we must decide whether a guilty verdict is
based on legally sufficient evidence by “determin[ing]
whether any valid line of reasoning and permissible
inferences could lead a rational person to the conclusion
reached by the fact finder on the basis of the evidence at
trial, viewed in the light most favorable to the People
[citations omitted]” ( People v Williams, 84 NY2d 925, 926).
Judged by that standard, we find and hold that the cir-
cumstantial evidence adduced at this trial decisively
extinguishes any doubt that defendant Robert Bier-
enbaum, and no one else, intentionally killed his wife Gail
Katz Bierenbaum, brought her body to Caldwell Airport in
App. 16
Fairfield, New Jersey, loaded it onto a small plane, flew it
over the Atlantic Ocean, and, there, dumped her remains.
Furthermore, in a case based on circumstantial
evidence — as this is — we must also adhere to the dictates
of People v Benzinger (36 NY2d 29, 32) expressed again in
People v Seifert (152 AD2d 433, 440, lv denied 75 NY2d
924) as follows: “[wJhen reviewing a case based exclusively
upon circumstantial evidence, the facts must be viewed in
the light most favorable to the People [citations omitted],
and it must be assumed that the jury credited the People’s
witnesses and gave the People’s evidence ‘the full weight
that might reasonably be accorded it’ [People v Benzinger,
supra; other citations omitted].”
The two circumstances, i.e., 1) that the police never
recovered the victim’s body and 2) that no one other than
the victim and her killer personally witnessed the violent
act which ended her life, do not bar a valid murder convic-
tion under current law. That was not always the case.
Thus, under Ruloff v People (18 NY 179), those two facts
once precluded a murder prosecution in New York. In that
1858 case, the Court of Appeals held, “without direct proof
of the death, or of the violence or other act of the defen-
dant which is alleged to have produced death,” a murder
conviction may not stand (id. at 184).
However, in 1982, in People v Lipsky (57 NY2d 560),
the Court of Appeals overruled Ruloff. Indeed, the Lipsky
court expressed “no hesitancy” in holding that “the corpus
delicti may be established by circumstantial evidence” (id.
at 569). The clear and direct language the Lipsky court
selected to disavow the 124-year-old Ruloff ruling is signifi-
cant in light of the Ruloff facts, because those facts are, in
several key ways, similar to those at bar. No murder
0
App. 17
weapon was ever found in either case, neither defendant
confessed, neither murder was witnessed, and neither
victim’s body — or any remains — was ever found.
As defendant now also argues that the verdict is
against the weight of the evidence, this Court, in its
unique factual reviewing role, must also determine
whether, “based on all the credible evidence, a different
finding would not have been unreasonable” (People v
Bleakley, 69 NY2d 490, 495). Should we answer that
inquiry in the affirmative, we next “must ... ‘weigh the
relative probative force of conflicting testimony and the
relative strength of conflicting inferences that may be
drawn from the testimony’ (People ex rel. MacCracken v
Miller, 291 NY 55,62 [other citations omitted]). If it
appears that the trier of fact has failed to give the evi-
dence the weight it should be accorded, then the appellate
court may set aside the verdict (CPL 470. 20[2]).” (Id. )
Applying these principles to the evidence in this
purely circumstantial murder case, our review convinces
us that, notwithstanding the facial attractiveness of some
of the factual arguments defendant’s appellate counsel
presents, this guilty verdict, based on the proof this jury
heard and saw, is the only fair and reasonable outcome
(see People v Sanchez, 61 NY2d 1022, 1024). y
That is not to say that some of the many items of
incriminating evidence, when each is evaluated in isola-
tion, are not susceptible to arguable inferences which at
first blush seem consistent with defendant’s claim of
innocence. But, when one attentively reviews and critically
assesses all the circumstantial evidence, cast in its aggre-
gated and interwoven symmetry, and after applying all
natural and reasonable inferences, the conclusion that
App. 18
defendant murdered his wife on July 7, 1985 becomes
inescapable, and the evidence excludes beyond a reason-
able doubt any reasonable hypothesis of innocence.
This abundant array of damning circumstantial
evidence proves beyond any reasonable doubt that defen-
dant intentionally killed this victim, that he did it on the
date, at the time and for the reason the People offered; and
that he disposed of her body as the People contend. When
one applies the appropriate legal principles, these conclu-
sions become most compelling for a rational, dispassionate
and attentive fact finder.
To begin with, any notion that the victim disappeared
in some way other than her actual demise on July 7, 1985
is utterly dispelled by a combination of the legitimate
inferences raised by all the proof and by defendant’s
concession that his wife died, and that she died that day.
There is every reason in this record to find that defendant
was the last person to see her alive at 11:00 A.M. that
Sunday morning. Apart from the fact that there is no
reliable evidence that anyone else saw or heard from her
thereafter, defendant repeatedly admitted to several
people, including his father, that he last saw her then. In
fact, defendant even misstated to Det. O’Malley that the
building doorman said he last saw her leave the building.
shortly after 11 o’clock on July 7. Defendant later re-
tracted that claim.
Second, he admitted that their marriage was unhappy
and virtually over, and that his own anger had reached a
level tempting him toward violence against her because he
was so frustrated by the strife between them. Moreover, he
told Dr. Feis — after withholding the whole truth from others,
and from her during their many earlier conversations
App. 19
subsequent to July 7 — that his last encounter with his
wife on July 7 ended in an argument more “severe” than
he had previously let on, that it “had become explosive,”
and that in its midst he had failed to heed his psychia-
trist’s advice to “defuse the situation.” More specifically, he
also admitted to his father that they had “difficulty in
adjusting to each other,” and in 1983 “[tJhat they had an
argument, had some physical contact.” By way of corrobo-
ration, Dr. Leigh.McCullough testified that in November
1983 she saw “finger shaped” bruises on the victim’s neck,
and the latter told her that defendant choked her when he
became angry at seeing her smoking a cigarette.-
By 1985, the parties’ three-year-old marriage can
fittingly be described as an emotional battleground. Verbal
strife plagued it, express and implied threats uttered by
defendant aggravated it, and defendant’s admitted vio-
lence against his victim during at least one episode surely
worsened it. By July, it was against this backdrop that a
divorce was virtually inevitable — a situation exacerbated
further by defendant’s knowledge of his wife’s adultery.
Armed with circled apartment rental ads the day
before she disappeared, the victim declared to her close
friend, Denise Kasenbaum, that she was leaving defen-
dant that weekend. The evidence is also strong that she
was determined to confront defendant with her divorce
demands. Her stated intentions, should defendant refuse
to accede to those demands, were plain. First, she would
threaten to humiliate him by publishing to his profes-
sional colleagues and superiors a warning letter she had
received from defendant’s treating psychiatrist; and,
second, she would threaten to expose an alleged Medicare
fraud in which she claimed he and his father were alleg-
edly involved. As discussed at greater length elsewhere in
App. 20
this opinion, notwithstanding defendant’s contentions to
the contrary, this evidence is clearly relevant not only to
motive, but to intent and identity.
That the victim had once before confronted him with
the same letter and her same threat weeks or months
before July 7 does not, as defendant now urges, diminish
the potential explosiveness of her intended confrontation
on the weekend she died, because the testimony is other-
wise clear and certain that she once again intended to tell
defendant over that weekend that she was divorcing him.
To reject any notion that the victim intended to use the
letter a second time simply because she may have already
used it once before would unreasonably ignore her various
statements, her reasons for wanting a divorce, and her
‘state of mind as that fateful weekend approached.
While no one other than the victim and defendant was
present to observe what transpired in the marital dwelling
on the morning of July 7, the inference from the foregoing
circumstantial facts is most compelling, if not irresistible,
that they had a hostile confrontation -that weekend about
the future of their marriage, its serious problems, and how
each would deal with them. No other inference finds any
support in this record, and none could survive an impar-
tial and objective assessment of the proof, particularly in
light of defendant’s admission that their argument was
“severe” and “had become explosive.”
These facts establish beyond any question that this
marriage existed in a volatile, highly emotional, turbulent
and dysfunctional environment. This couple had a history
of angry words and deeds, of threats, and of violence; they
harbored a wide range of feelings ranging from ambiva-
lence to profound hostility toward each other, and, beyond
App. 21
their generalized resentment, defendant had evident
motives to kill the decedent. Surely, killing her would not
only end their miserable and loveless marriage, and end it
without the expenses and financial burdens of divorce, but
it would also stop her from carrying out her threats to
expose his violence and his alleged fraud. Exposing these
transgressions, if it did not disgrace him, would most
certainly compromise his professional standing, damage
his personal reputation, and injure his short- and long-
term career plans and income potential.
Moreover, his behavior with other women so soon
after July 7 is inconsistent with behavior one would
reasonably anticipate from a husband whose wife had
mysteriously disappeared, notwithstanding that their
marriage was stormy. Indeed, his behavior utterly belies
his claims of ignorance of his victim’s whereabouts. This
conclusion is effortlessly drawn not nearly so much be-
cause he began dating so soon, but much more because of
his obvious and expressed confidence his wife would never
return. After all, he made several statements making it
appear he had no idea how his wife disappeared, where
she was, and when or whether she would ever return.
Contemporaneously with these expressions of despair and
bewilderment, he promptly had sexual relations on his
first date with a nurse in the very room he and his victim
had rented for the 1985 summer in the Hamptons, less
than a month after she “vanished.” One can reasonably
infer that he knew she would not suddenly return and
appear at his bedside.
Furthermore, he invited a different woman to move
into the marital apartment with him in September 1985.
When a few months later he received an early morning
telephone call from the police indicating they may have
App. 22
had his lost wife at the precinct, he was less than anxious
to accede to their request that he immediately leave his
bed to possibly identify his “inexplicably missing” wife. At
that point and with no expressed hesitation or apparent
lack of confidence, he told his paramour to remain in bed
through the night in the marital apartment, because he
“doubt[ed]” it was his wife. This aspect of the evidence,
when viewed with all else the People proved, compels
inferences that defendant had an informed reason, based
on his own direct knowledge, to be completely unconcerned
that: a) his paramour might shortly be forced to confront
his “missing wife” in her own bedroom; and b) his early
morning trip to the precinct would reunite him with her.
In addition to the foregoing powerful circumstantial
evidence, the People contend that the interplay between
certain items of evidence also supports the verdict. They
argue that when certain established facts are juxtaposed
with other proven circumstances, defendant’s multiple
contradictions and omissions are patently incriminating.
Therefore, in the aggregate, the People convincingly
advance the conclusion that the jury’s verdict was correct.
Illustrative — but not exhaustive — are the following
examples:
1. Defendant misstated that the doorman told him
he saw the victim on the afternoon of July 7, when in fact
the doorman made it clear he saw her last on July 6 and
~he could not remember whether he saw either the victim
or defendant at all on July 7;
2. Defendant described differently to different people
the items the victim took and the clothes she wore when
she purportedly left to sunbathe in Central Park, and
App. 23
whether she was then wearing shoes and her engagement
ring;
3. Defendant gave contradictory accounts about
whether and why he sent the living room rug out to be
cleaned immediately following the decedent’s disappear-
ance, but completely withheld that information from the
police;
4. He was inconsistent about his purported knowl-
edge of his wife’s post-July 7 whereabouts, alluding to
different theories and purported sightings to different
people. Defendant variously suggested or stated that his
wife was wandering around Central Park in “a fugue
state,” that she had a drug problem and ran off with drug
dealers, that she possibly committed suicide, that she was
on a shopping spree at Bloomingdale’s, that she left to
hang out with “druggie friends,” that she might have been
killed by drug dealers, and that she had left for the Car-
ribean to be with a boyfriend. In one instance he falsely
claimed that a private detective, whom he also claimed he
hired to find her, learned she was living in California with
financial support trom her family. Not a single shred of
evidence in this record supports any of these bizarre
claims;
5. Perhaps defendant’s most damning omission was
his repeated, false claim to the police and to others that he
remained in the apartment all afternoon on July 7 and
then went directly to his nephew’s birthday party in New
Jersey. However, the evidence also conclusively establishes
that he rented and flew a Cessna 172 airplane beginning
at 4:30 P.M. that day from Caldwell Airport in Fairfield,
New Jersey and returned two hours later at 6:30 2M. He
can hardly claim with any credibility that am interlude of
App. 24
that nature and length slipped his mind when he spoke to
the police and others on the first day, or, indeed, at least
four times during the first week, following his wife’s
“unexplained” disappearance.
Compounding the significance of that devastating
omission — an omission which concealed the very means
and opportunity to dispose permanently of his victim’s
body — is the documentary evidence found in his home
several months after July 1985 showing clearly that his
written flight log entry for July 7 was changed from July 7
to August 7.
Furthermore, he said to at least two people, not
including the police, that he had searched for his inexpli-
cably missing wife in Central Park on the afternoon of
July 7 and there allegedly found the suntan oil and towel
she had taken with her when she left the apartment at
11:00 A.M.
However, notwithstanding that, initially, the police
carefully explained to him at least three times their
critical need to know every detail he was able to recall in
order to aid their search efforts, he withheld all of this
information during their interview with him — one encoun-
ter a mere 34 hours, and the others all within 7 days,
following his wife’s disappearance. It is beyond cavil that
this information was relevant and that it was exactly the
type they implored him to convey. Instead, he consistently
told the police and others that he remained in the marital
apartment from the time the victim had left at 11:00 A.M.,
until 5:30 P.M., then going directly to his nephew’s birth-
day party at his sister’s New Jersey home;
6. During the first police interview of defendant on
July 8 at 9:00 P.M., lasting 45 minutes, Det. Dalsass asked
App. 25
defendant for a list of the names and phone numbers of
the victim’s friends, relatives and others to facilitate the
search efforts. Because defendant did not have a list with
him, Dalsass said he would call defendant’s home for it
that evening. However, defendant said he would not be
home until later, as he had plans to dine out — after an
interview which had focused on his wife’s sudden “disap-
pearance” just 34 hours earlier. Dalsass waited until 12:30
A.M. and left the first of approximately eight messages on
defendant’s home answering machine and at his work
number during the ensuing week. Defendant responded to
none of them. Consequently, although defendant had
contact with Det. O’Malley in the interim, Det. Dalsass
could not speak to defendant to obtain that vital informa-
tion until the July 14 interview. Furthermore, he did not
turn over the victim’s telephone/address book until more
than two weeks after her disappearance;
7. He told several people that, just before his wife
left the apartment for the last time, they argued. Never-
theless, he contradicted himself among various versions
and aspects of those statements. Furthermore, when
defendant spoke to Det. Dalsass on Monday, July 8 and
again on Sunday, July 14, he never said — indeed on July 8
he denied — that he and his wife argued that morning,
even though Dalsass did acknowledge that defendant, on
July 14, said the victim was “pissed” the morning she left.
However, apparently also on July 8, defendant told the
victim’s therapist, Dr. Sybil Baran, that he and the victim
had argued and that “she’d gone off in a huff”;
8. Although defendant would not allow any police
officers to view or inspect his apartment until September
30, 1985 — and then only with severe restrictions — he, long
before that lay, falsely stated to others that the police had
App. 26
searched his home and car and found him to “be clean”;
and
9. Defendant falsely attributed to Dr. Baran the
opinion that the victim was depressed and might have
committed suicide. Dr. Baran unequivocally denied she
had ever made either of those statements to defendant or
that she had even held these opinions. In fact, several
witnesses, including Dr. Baran, described victim’s state of
mind during the period before July 7 as being “happy,”
“jovial” and the like.
Defendant’s lies, misstatements and omissions power-
fully bespeak his consciousness of guilt. We recognize that
the law most often views consciousness of guilt evidence as
weak — but not always. The Court of Appeals has made
that clear. In People v Cintron (95 NY2d 329, 332-333), the
Court said that the “probative weight” of evidence of
consciousness of guilt is “highly dependent upon the facts
of each particular case.” In an earlier case, specifically
referring to a defendant’s false statements, the Court said:
In the circumstances of this case, it is difficult to
come to any other conclusion than that these
false statements indicate a consciousness of
guilt. We recognize that as a general proposition
false statements are a relevant but weak form of
evidence. (See e.g. People v Leyra, 1 NY2d 199.)
Since there may be reasons other than guilt of
the crime charged which would prompt a person
to give a false statement, the probative weight of
such statements depends upon the facts of the
particular case. On the facts here, it is reasonable
to assign a moderate degree of probative force to
the false statements [emphasis added].
People v Benzinger (36 NY2d 29, 33-34).
App. 27
In considering whether this defendant’s behavior and
statements show evidence of his consciousness of guilt, we
find that they unquestionably do. And, while we agree this
type of evidence, alone, may not and should not form the
basis for a finding of guilt, it may be taken into account in
evaluating all the other evidence. We further determine
that the instant body of consciousness of guilt evidence —
because of its quality and quantity — exhibits a guilty
mind, a finding which, in this context and under these
circumstances, is surely not weak, or, for that matter, even
moderate. Rather, the evidence is credible and we hold
that the resulting inference is strong.
Of course, if one were to evaluate each item of evi-
dence in isolation, a different conclusion might be reached
for at least some sequestered items. But, as the law
requires us to look at the body of proof as a whole, we are
convinced it paints a clear picture of a defendant’s guilt,
and that the jury’s verdict is both supported by legally
sufficient evidence and entirely consistent with its weight.
The People proved beyond a reasonable doubt that
this defendant had the opportunity, the motive, and the
intent to kill his victim, and that it was he who did so.
Beyond that, the proof also clearly shows how he went
about it, that she did not kill herself, nor that any boy-
friend or drug dealer killed her.
Apart from the fact that defendant’s alternate theories
of his victim’s demise have no evidentiary support, the
existing evidence itself also refutes them. Her body was
never found and the great weight of the evidence shows
that she was anything but desperate or depressed so that
one might reasonably fear she was contemplating suicide.
That was the overwhelming opinion of those closest to her,
App. 28
including her gynecologist, her therapist of three years,
and her sister, three confidantes in the best position to
know. Moreover, it is unlikely that one’s body would vanish
without a trace in the aftermath of self-inflicted death.
As for any suggested theory that someone other than
defendant killed her, no proof exists in this record which is
even remotely consistent with such speculation, and there
is no one other than defendant Bierenbaum who, like he,
had the motive or had the exclusive opportunity to kill her
at the time and place where the victim was last seen alive;
and, surely, there was no one who signaled his obvious
guilt by covering and distorting the truth as this defen-
dant repeatedly did. His claim of innocence — and the
presumption which accompanies it — have been utterly
overwhelmed and destroyed by the People’s proof.
In our sufficiency review, we have determined that a
“valid line of reasoning and permissible inferences could
lead a rational person to the conclusion reached by [this
jury] on the basis of the evidence at trial, viewed in the
light most favorable to the People .. .” (People v Williams,
84 NY2d 925, 926). Furthermore, there is virtually no
conflicting testimony within the People’s case to compare
against the weight of the People’s credible proof, proof |
which so firmly supports this conviction. Moreover, the
testimony of the only defense witness, Joel Davis, suggest-
ing that he saw the deceased on the afternoon of July 7,
was extremely weak. It was appropriately rejected by the
jury. Accordingly, there can be no holding that this verdict
is against the weight of the evidence.
It is clear to us that a finding other than guilt would
not have been reasonable. We also conclude that even if a
different finding were somehow deemed reasonable, there
\
RE TN Ne Mca I Fe Doce ASE i tha. i Ad ae Nis eal HD
- Be a eS eee ee ee ee
App. 29
can be no rational view after “‘weigh[ing] the relative
probative force of conflicting testimony and the relative
strength of conflicting inferences that may be drawn from
the testimony,’(People v MacCracken ex rel. Miller, supra,
291 NY 55, 62 [other citations omitted]),” that this jury
“failed to give the evidence the weight it should be ac-
corded” (People v Bleakley, 69 NY2d 490, 495).
In light of the foregoing, this verdict is supported by
legally sufficient evidence and it is thoroughly consistent
with the evidentiary weight.
1. Psychiatrist’s Warning Letter and Other Hearsay
The trial justice rejected the People’s pre-trial request
to call defendant’s treating psychiatrists and psychologist
as witnesses to testify about factual matters and opinions
connected to their treatment of defendant, including the
conversations they had with the victim and defendant’s
parents, after defendant’s consent was procured. The court
did, however, permit the prosecution to adduce testimony
that the victim had received a letter from one of these
psychiatrists warning her of the danger defendant posed
to her, although the justice prohibited the People from
introducing the letter itself. Notwithstanding that defen-
dant originally consented to having the psychiatrist speak
to and warn the victim and his parents, he now claims
that the ruling allowing testimony only about the exis-
tence and nature of the warning letter was error because it
violated his statutory privilege under CPLR 4504(a) and it
was otherwise unduly prejudicial. We disagree.
The psychiatrist communicated the consented-to
warning by sending a letter, sometimes referred to as a
App. 30
Tarasoff letter (see Tarasoff v Regents of Univ. Of Califor-
nia, 131 Cal Rptr 14), to the victim. The justice allowed
the jury to learn only of its existence and nature, but not
of its specific contents beyond its warning to the victim
| that defendant posed a threat to her. That ruling was
correct, first, because defendant waived his CPLR 4504(a)
privilege by consenting that the warning be communi-
cated; second, because a warning under these circum-
stances is an exception to the principle of confidentiality
since the psychiatrist is under a duty to warn the intended
target of a patient’s violence; third, because the nature and
existence of the warning letter were relevant to the state
of the parties’ marriage and defendant’s motive to kill his
wife in light of her stated intent to use it as leverage in her
contemplated divorce action against defendant by con-
fronting him with it and threatening to reveal its contents
if he refused to meet her divorce settlement demands; and,
finally, because it was relevant to prove, in addition to
motive and the state of the parties’ marriage, the interre-
lated issues of his intent to kill her and his identity as her
killer.
CPLR 4504(a) in part provides:
Confidential information privileged. Unless the
patient waives the privilege, a person authorized
to practice medicine ... shall not be allowed to
disclose any information which he acquired in at-
tending a patient in a professional capacity, and
which was necessary to enable him to act in that
capacity [emphasis added].
Because defendant consented to having the warnings
and disclosures communicated, not only to the victim but
also to his parents, the court’s ruling about the warning -
letter was correct. As this Court stated in Farrow v Allen
Sen TA EG RAEI ANIOE Cia, ch Uitte anal atl Naan oe
App. 31
(194 AD2d 40), once a patient authorizes his or her psy-
chiatrist to release, what might otherwise be, a privileged
letter to “a third party who is completely unconnected to
his or her treatment and who is not subject to any other
privilege,” its release “is sufficient to waive the privilege as
to the information contained in the letter itself” (id. at 44;
cf. Doheny v Lacy, 168 NY 213, 223-224; Workman v
Boylan Buick, Inc., 36 AD2d 978, 979; In re Von Bulow,
828 F2d 94, 100-101). Since none of the three of these
relatives was involved in providing defendant treatment
nor subject to any other privilege (see Poppe vu Poppe, 3
NY2d 312 [marital privilege inapplicable where one
spouse wrongs another]; People v Davis, 226 AD2d 125, lv
denied 88 NY2d 1020 [quoting Poppe]; People v Govan, 268
AD2d 689, iv denied 94 NY2d 920 [crime against spouse
extinguishes statutory privilege]; People v Johnson, 84
NY2d 956 [no statutory or common law parent/child
privilege for adult child under these circumstances]), the
court correctly decided that defendant waived the privi:
lege. Furthermore, the trial justice gave the People even
less leeway than Farrow permits after a waiver, by ruling
that only the existence and nature of the letter — not its
factual content nor the physicians’ testimony — were admis-
sible.
Therefore, the trial justice’s ruling was a careful and
completely reasonable exercise of judicial discretion.
Moreover, the ruling was correct also because of the
Tarasoff exception to the CPLR 4504(a) privilege. That
exception provides that for compelling policy reasons the
privilege can be overcome when the patient demonstrates
that he poses a clear and present danger to a third party —
in this case his wife. In MacDonald v Clinger (84 AD2d
482, 487), the court said:
App. 32
... where a patient may be a danger to himself
or others (see e.g. Tarasoff v Regents of Univ. of
Cal., 17 Cal3d 425; Berry v Moench, 8 Utah 2d
191; Simonsen v Swenson, 104 Neb 224), a physi-
cian is required to disclose to the extent neces-
sary to protect a threatened interest. “The
protective privilege ends where the public peril
begins” (Tarasoff v Regents of Univ. of Cal., su-
pra, at p 442).
Defendant also relies on the trial justice’s rejection of
the People’s request to call defendant’s three treating
doctors to testify at trial. He thus argues that her ruling
necessarily extends to preclude the People from also
proving the existence and nature of the Tarasoff letter.
However, the trial justice specifically stated her ruling did
not apply to preclude the letter’s existence and nature.
Additionally, her key reason for precluding the profes-
sionals from giving oral testimony at trial was that one of
their purposes for consulting with defendant’s closest
family members was to gain insights from his family
members, insights which might enhance their treatment of
defendant. That logic, which correctly served to preclude
the doctors from testifying to the information they con-
veyed to and received from the family, does not apply to
the existence and nature of the psychiatrist’s letter whose
separate purpose was only to warn a third party, this
victim.
Because the letter’s separate purpose was to warn,
and, further, to insure that its disclosure at trial for that
valid purpose did not publish its otherwise confidential
contents — and thus breach the court’s associated preclu-
sion order — the court appropriately placed significant
restrictions on the People’s use of the letter. First, the
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App. 33 a
court prohibited the People from showing the letter to the
jury and, second, they were not permitted to adduce
anything other than oral testimony describing only the
type of letter the victim had received from defendant’s
psychiatrist.
Defendant next argues that the claimed relevancy of
the Tarasoff letter does not justify its introduction because
its prejudicial effect outweighs its probative value. He
urges now — as he did at trial — that the court could have
served the People’s purpose adequately by only allowing
the People to use the letter to inform the jury that the
letter existed, and stipulating that its unspecified contents
would embarrass defendant. However, the court, while
prohibiting publication of its specific factual contents to
the jury, did allow the jury to know that the letter warned
the victim of the danger defendant posed to her. Notwith-
standing defendant’s argument, this limitation was, under
these circumstances, an exercise of discretion which was
fair to both sides for the following important reason.
One of the prosecution’s key assertions was that
defendant was motivated to kill his wife because she
threatened to destroy him by exposing the letter’s contents
should he fail to meet her divorce demands. It was there-
fore highly relevant to the question of defendant’s motive
that the jury be allowed to know and consider the conse-
quences the victim intended by threatening defendant
with such a disclosure to his superiors and peers, a disclo-
sure which would likely compromise severely his profes-
sional status, his personal reputation and standing, and
his economic future. While defendant understandably
argues that this ruling prejudiced him at trial, we hold
that under these circumstances it did not unduly do so. It
is clear to us that the highly probative nature of this
App. 34
particular proof on the critical questions of defendant’s
motive and intent, and of the killer’s identity, far out-
weighs any prejudice (see People v Alvino, 71 NY2d 233,
241-242). Indeed, this prosecution contention —i.e., that it
helped expose defendant’s motives — was a valid one, as it
is at the heart of the People’s case.
We note further that the court exercised its discretion
appropriately by rulings which significantly and thought-
fully limited the People. The trial justice’s carefully bal-
anced decisions allowed the People to show only the
existence and the general nature of the letter in order
legitimately to probe defendant’s motive. On the other
hand, by concomitantly excluding the letter itself, sup-
pressing its factual content and prohibiting the proffered
testimony of defendant’s three treating mental health
professionals whom the People had intended to call as
witnesses, these rulings protected the remaining, essential
aspects of defendant’s statutory privilege under CPLR
4504(a).
Finally, the court’s cautionary instructions to the jury
were more than adequate to assure a relevant and fair
consideration of this evidence and avoid prejudicial im-
pact. :
Turning next to defendant’s hearsay claims, he argues
that the trial justice erroneously allowed several People’s
witnesses to testify that the victim had told them that,
inter alia, her marriage was stormy, that she was afraid of
defendant, that he was very controlling, that there was
much verbal strife between them, that her husband had
occasionally made threatening statements to her, that he
once choked her in 1983 rendering her unconscious, that
she had taken steps to prepare to leave him, and that she
a ee ae Ne
App. 35
had used and intended again to use the Turasoff letter to
threaten him if he failed to meet her divorce demands.
To begin with, the court, on a number of occasions
during trial and at its conclusion, gave the jury cautionary
instructions about the victim’s statements and other
related evidence, evidence the People had introduced to
explain two critical factors, i.e., the state of this marriage
and both parties’ state of mind. This Court has reviewed
these various instructions given during trial and at its
end. We disagree with defendant and find them fair and
legally satisfactory.
Defendant also disputes the instructions’ adequacy,
and, beyond that — in addition to urging this Court to
reject the notion of a background exception to the hearsay
rule — he further argues that the testimony recounting the
victim’s out-of-court statements was largely unreliable. He
therefore contends it was inadmissible under Nucci v
Proper (95 NY2d 597) even if it were deemed otherwise
allowable. We disagree.
We hold that the reliability of this evidence, initially a
question for the court to resolve, is amply supported by
this record. In Nucci, the Court set forth the~factors
relevant to a trial justice’s assessment of the reliability of
out-of-court-statements which the People proffer as hear-
say exceptions. The court said (at 603):
Reliability is the sum of the circumstances sur-
rounding the making of the statement that ren-
der the declarant worthy of belief. Relevant
factors include “spontaneity, repetition, the men-
tal state of the declarant, absence of motive to
fabricate, * * * unlikelihood of faulty recollection
and the degree to which the statement was
App. 36
against the declarant’s * * * interest” (see People
vu James, 93 NY2d 620, 642 [citing Idaho v
Wright, 497 U.S. 805, 821; Dutton v Evans, 400
U.S. 74, 89]). Courts have also “considered the
status or relationship to the declarant of the per-
son 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” (James, supra, 93
NY2d at 642-643 [citing United States v Mat-
thews, 20 F8rd 538, 546; other citations omit-
ted]).
The victim’s contested statements meet virtually all
these enumerated criteria. She was speaking spontane- —
ously; 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 corrobo-
rated facts about their marriage; she was, by all indica-
tions, 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 con-
cerned private matters that some would be embarrassed or
otherwise reluctant to disclose. Furthermore, the state-
ments 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.
As for defendant’s remaining reliability claims, they
raise questions quite properly within the jury’s province.
The proof more than adequately supports the jury’s de-
terminations.
Defendant also argues that although this contested
hearsay information, emanating from the victim, was
App. 37
admitted purportedly as legitimate background evidence,
there is no “background exception” to the hearsay rule,
and, beyond that, this “background information” was
highly prejudicial, and, therefore, the trial justice should
have precluded it. We hold otherwise.
Most of the victim’s hearsay statements, in one way or
another, bespoke this couple’s marital strife and unhappi-
ness, a perception defendant himself shared and repeat-
edly admitted. In a domestic violence homicide, as this
clearly is, it is highly probative — quite often far outweigh-
ing any prejudice — that a couple’s marriage was strife-
ridden and that defendant previously struck and/or
threatened the spouse-victim (see People v La France, 182
AD2d 598, 599-600, lv denied 80 NY2d 905; People v
Shorey, 172 AD2d 634, lv denied 78 NY2d 974). Indeed, it
has also been held that such evidence in like contexts is
“highly probative of the defendant’s motive and [i]s either
directly related to or ‘inextricably interwoven’ (People v
Ely, (68 NY2d 520] ... at 529) with the issue of his iden-
tity as the killer” (People v Linton, 166 AD2d 670, 671, lv
denied 77 NY2d 879; see also People v Laverpool, 267
AD2d 93, lu denied 94 NY2d 904; People v Bonilla, 251
AD2d 82, lu denied 92 NY2d 893).
Defendant asserts that because there is evidence of
“only one” earlier act of violence by him against his wife,
this murder case should not be considered as a “domestic
violence homicide,” and therefore there is no justification
for the single alleged choking episode te be received in
evidence along with various threats and other evidence of
discord. In part, he frames his argument by citing reported
“domestic violence” cases wherein the jury was allowed to
learn that the victimized spouses endured more than one
attack by the accused pre-dating the violent act charged in
App. 38
the indictment. He thus claims that those cases do not
apply to permit such evidence under these facts because
this case involves evidence of only one prior assault.
We reject the notion that in a case where an alleged
homicide is the second alleged violent act against a spouse
— instead of, for example, the third, fourth or ninth — the
case may not be treated as a “domestic violence” homicide
for purposes of evidentiary rulings. Whether earlier acts of
alleged violence or threats are admissible depends on the
circumstances surrounding both the past and the cur-
rently charged aggressive acts or threats. A trial court
must not merely count the number of past incidents, but it
must engage in a qualitative assessment of the words and
deeds which create the history of the relationship between
defendant and alleged victim. It is on the basis of that
history and its relevance to proving an element of the
crime charged — and, as well, after the court balances
probative value against potential prejudice — that a court
may determine the admissibility of prior evidence of
aggressiveness, be it acts of domestic violence, threats or
otherwise. Encouraging that type of qualitative analysis is
the common theme of this State’s settled law on this
subject (see People v Pena, 251 AD2d 66, affd 93 NY2d 946
[prior assault admissible]; People v Jones, 289 AD2d 1010,
lv denied 97 NY2d 756 [prior threats of violence and acts
admissible]; People v Lee, 284 AD2d 412, lu denied 96
NY2d 921 [previous assault against victim admissible];
People v Reynoso, 262 AD2d 102, lu denied 93 NY2d 1025
[prior assault admissible]; People v Steinberg, 170 AD2d
50, affd 79 NY2d 673 [uncharged evidence of prior assaul-
tive acts may be admissible as background to support
testimony that otherwise might be unbelievable or sus-
pect)).
App. 39
Surely, one can argue as defendant does that any
single aggressive act or threat, or a series of them, can
suggest to a jury a general propensity to behave aggres-
sively. On the other hand, the acts and/or threats can —
separately or together — demonstrate as they do in the
instant case defendant’s specific intent to hurt a particular
human being, ie., in this case, his wife, and to do so
physically and emotionally. They also manifest his motives
to abuse and control her, to quickly end a miserable
marriage, and ultimately to keep her from using the
Tarasoff letter in a divorce proceeding to humiliate him,
damage his reputation, imperil his career and jeopardize
his financial future.
After reviewing the court’s rulings and reasons in this
regard, the other evidence, and the court’s cautionary
instructions to the jury during and at the trial’s conclu-
sion, we hold that none of these rulings compromised
defendant’s right to a fair trial.
2. Excited Utterances and Prior Violence
Defendant contends that the court improperly allowed
the prosecution to adduce testimony, and otherwise refer
to evidence, that defendant was violent, and that he
choked his wife to the point of unconsciousness in late
1983. As a part of that contention, defendant also asserts
that the trial justice erred in allowing Hillard Wiese, an
attorney and the victim’s cousin, to testify about the
victim’s purported “excited utterances” describing the
choking event. The victim, whom Wiese occasionally saw
at family gatherings, telephoned him at his office one
afternoon in the fall of 1983. She was seeking his advice.
“(S]peaking in very hushed tones and very rapidly .. .” and
App. 40
“sound[ing] extremely upset,” she said that “either the day
before or the night before she had a fight with her hus-
band and that during the course of that fight he had
choked her into unconsciousness .. .” According to Wiese,
she added “that this was not the first time that they had
fought” nor “the first time he had choked her, but it was
the first time she was rendered unconscious and that she
was extremely upset.” She apparently spoke quickly
because she expected defendant to return shortly, and she
needed to know what she should do.
Defendant correctly argues that the victim’s state-
ments during her telephone call to Hillard Wiese do not
constitute “excited utterances.” As the Court of Appeals
recently wrote in People v Vasquez (88 NY2d 561, 579):
An excited utterance is one made “under the im-
mediate and uncontrolled domination of the
senses, and during the brief period when consid-
eration of self-interest could not have been
brought fully to bear by reasoned reflection”
(People v Brown, ... 70 NY2d [513] at 518). The
existence of a physical shock or trauma has often
been cited as a key consideration (see People v
Brooks, 71 NY2d 877; People v Brown, 70 NY2d
at 516-517; 6 Wigmore, Evidence § 1745(1]
{[Chadbourn rev ed]). While the statement must
have been made before the declerant had the op-
portunity to reflect, “‘the time for reflection is
not measured in minutes or seconds,” but rather
“4s measured by facts.’” (People v Marks, 6 NY2d
67, 72, cert denied 362 U.S. 912; People v Norton,
164 AD2d 343, 353, affd 79 NY2d 808.) The court
must assess “not only the nature of the startling
event and the amount of time which has elapsed
between the occurrence and the statement, but
App. 41
also the activities of the declarant in the interim”
(People v Edwards, 47 NY2d 493, 497. . .).
To begin with, Wiese was unable to reliably estimate
how long before his cousin called him that the choking
incident occurred. Based on what he said at trial, the
interval could have been as long as twenty-four hours,
hardly a typical time span to qualify as an “excited utter-
ance.” Second, the record is totally devoid of evidence
about what transpired during these many intervening
hours to enable the trier of fact to determine, based on
“‘the activities of the declarant in the interim,’” whether
the “declarant had the opportunity to reflect ... ” (id.).
Finally, the victim chose to call an attorney, rather than a
lay person, one with whom she did not have an especially
close, personal and confidential relationship.
Consequently, it is not improbable that her call
followed at least some degree of reasoned reflection. Thus,
it is impossible for a court to conclude safely that her
motivation was untouched by economic self-interest or
unencumbered by concerns about legal strategy. Finally,
although the alleged assault she recounted was undoubt-
edly extremely frightening, the proof shows her mental
state so many hours later was not shown to be dominated
by the same level of heightened excitement that would
normally overwhelm a person in the immediate aftermath
of such a recent traumatic shock.
Therefore, the trial justice should not have admitted
the victim’s statements to Hillard Wiese as “excited
utterances.” However, we hold that this error was harm-
less, because, as we noted earlier, the jury otherwise
properly learned that the victim claimed defendant had
committed a violent act against her in the fall of 1983, as
App. 42
evidence relevant to the state of their marriage, to defen-
dant’s motive, to his intent, and relevant evidence of
identity. Indeed, defendant himself told his father in 1983
that their strife had reached the point of “some physical
contact,” and there is credible testimony that in 1985
defendant was so filled with hostility that he was tempted
toward violence against his wife. Therefore, even though
the victim’s phone conversation with Wiese was errone-
ously admitted as “excited utterances,” its core content
was nonetheless relevant, admissible, and the jury prop-
erly heard about it from other witnesses.
Defendant counters this reasoning, contending that
the 1983 choking incident and all the other evidence and
references to threats and marital strife should have been
precluded because they bespeak propensity and because
the People improperly used the choking incident to sug-
gest that defendant had a propensity for violence. There-
fore, he argues such evidence unduly prejudiced him,
outweighing any of its probative value.
This complaint — apart from ignoring or underestimat-
ing the appropriate, limiting language the court carefully
chose to caution and instruct the jury — misconstrues the
rationale underlying People v Molineux (168 NY 264) and
its progeny. Molineux authorizes a trial justice to consider
allowing a jury to hear about a defendant’s prior bad acts —
be they violent or otherwise — if they shed light on the
issues of intent, identity, motive, absence of accident or
mistake, or common plan and scheme (id. at 293). In other
words, they “... may be admitted only if the acts help
establish some element of the crime under consideration
...” (People v Lewis, 69 NY2d 321, 325). In this case his
behavior and threats were admitted because they revealed
the former three of these five potentially relevant items.
App. 43
Often, evidence of prior assaults and threats mani-
fests general aggressiveness, i.e., a general propensity to
act aggressively against other people. It is this inappropri-
ate and distracting inference which the Molineux ruling
and its progeny aim to bar. However, the proof here
evinces defendant’s intent to focus his aggression on one
person, namely, his wife — his victim. That key factor in
the context of marital or other intimate relationships
frequently differentiates domestic violence assaults and
homicides — wherein prior bad acts have often been
deemed admissible during the People’s direct case — from
other cases wherein evidence of past assaultive behavior
against people other than the victim has most properly
been precluded. In the former, the previous aggression
principally indicates intent, or motive, or identity; whereas
in the latter it can predominantly give rise to an inference
of propensity. This logic and rationale accords with well-
settled law in New York in these matters (People v Angel,
238 AD2d 210, lu denied 90 NY2d 1009; People v Bonilla,
supra; People v LaFrance, supra).
Finally, this evidence shows that this defendant was
motivated and had an intent to harm this victim. There is
little or nothing by way of circumstantial evidence that is
more relevant or more probative in a circumstantial
murder case — especially one involving domestic violence —
than the type of evidence at issue on this appeal.
We also reject defendant’s claims in their entirety that
the prosecutor’s summation exacerbated the error which
he says occurred by dint of the court’s decision to admit
evidence of the 1983 choking incident; and that the court’s
charge did not, nor could it, adequately safeguard defen-
dant’s right to a fair trial. First, the court correctly ruled
that defendant’s objection in the form of a mistrial motion,
App. 44
after summations were completely over, was belated (see
People v Allende, 269 AD2d 211, lu denied 95 NY2d 792;
People v Valez, 256 AD2d 135, lu denied 93 NY2d 879), and
its denial of the motion was a discretionary decision we
perceive no reason to disturb. Second, if we were to reach
the merits, we would find that the prosecutor’s summation
arguments on the subject, when viewed in the complete
context of his closing statements, do not warrant reversal.
Furthermore, when they are read together with the court’s
cautionary charges wherein the trial justice repeated and
emphasized the limited value of this and other related
evidence, we firmly believe the record belies his contention
that he was denied a fair trial.
3. Medical Examiner’s Testimony and Videotaped
Demonstration
Defendant contends: 1) that the trial justice improp-
erly allowed the People to adduce opinion testimony that
he was able, as a trained surgical resident, to dismember
the victim’s body within ten minutes, and also capable of
packing it into a flight bag, whether or not the body had
been disarticulated; and 2) that the court improperly
permitted the jury to watch a videotaped demonstration
depicting how a pilot can, without any assistance, load a
110-pound body, so packaged, onto a Cessna 172 airplane,
fly it over the ocean, and discard it overboard.
The defense argues that these rulings were improper
because: 1) there was no evidentiary foundation to justify
the opinion evidence and the scenario depicted in the video
demonstration, i.e., that they were purportedly based on
speculation; and because 2) these forms of evidence are
extremely potent, inflammatory, and therefore they
App. 45
unduly prejudiced defendant in a case like this where,
according to him, there is no proof to support the opinions
or the scenario shown on tape. We disagree.
As for the opinion testimony, the court exercised its
discretion properly by admitting the medical examiner’s
expert testimony. Those opinions, contrary to defendant’s
argument, did not endanger the jury’s objectivity, as the
record in no way suggests that they were delivered in
anything other than a dispassionate and brief manner. In
addition, they sufficiently related to the circumstantial
evidence the People offered, thus enabling the jury to
understand medical and surgical matters beyond their ken
and better evaluate the prosecution’s theory (People v Lee,
96 NY2d 157).
Regarding the videotape, defendant stated he had “no
objection” to its introduction when, on October 16, 2000, it
was offered into evidence at trial. Accordingly, this claim is
unpreserved and we decline to review it in the interest of
justice (CPL 470.05[2]; People v Luperon, 85 NY2d 71).
Furthermore, defense counsel’s earlier language on Octo-
ber 11, 2000 purporting to object was premature and, in
any event, legally inadequate to constitute an “objection”
(id.). Defendant argues that on October 11, when the
People turned over to the defense copies of the videotaped
demonstration and indicated they intended to offer the
videotape into evidence on October 16, the defense uttered
the following: “I suspect we'll object.”
However, this faint expression, on its face, is nothing
more than a prediction that defendant might — or probably
will in future — object to the video. Moreover, the justice’s
immediate response — “I suspect Ill allow it” — is of no
greater legal significance. It is, simply put, not a ruling in
App. 46
response to an actual objection based on then existing
circumstances (see People v Luperon, supra, at 78; cf.
People v Balls, 69 NY2d 641, 642).
Notwithstanding defendant’s characterization of that
exchange as “wordplay,” contending now it should be
deemed a substantial legal objection, the attorney’s words
do not constitute an effective protest under CPL 470.05(2),
because the specific language would not, nor did it, prompt
the court to make an actual ruling. While the attorneys
and the court may have intuitively suspected what was on
each other’s mind, the legal process has not become, nor
should it be, guesswork, mind reading, or fortune telling.
Rather, it should be, and is, a process whereby trial
attorneys announce an unambiguous objection, in prae-
senti, based on an articulated or otherwise known ration-
ale involving logic, legal principles, and/or common sense,
a protest which gives an adversary notice sufficient to
frame a response, and affords the court an opportunity to
issue a ruling. Defendant’s so called “objection” contains
none of these ingredients.
We therefore reject as unpreserved defendant’s pre-
sent position regarding the video’s admissibility, not
because we revere form over substance, but, rather, out of
our recognition of the indisputable need during a trial for
clear language announcing candid and specific positions,
after which judges may issue fitting rulings. Most impor-
tant, if there existed any lingering ambiguity about
whether defense counsel had or had not registered a
cognizable objection on October 11, defense counsel him-
self resolved it on October 16 when he said “no objection”
at the moment the People actually offered the exhibits.
App. 47
Furthermore, were we to reach the merits of the
videotape’s admissibility, we would reject the defense
argument that its contents are based on pure speculation
and thus were improperly placed before the jury. This
entire case leaves no doubt whatever that the contents of
the videotape depict a scenario that was anything but
speculation. Rather, the tape’s contents clearly demon-
strate the feasibility of the People’s theory of this case, a
theory which all of the circumstantial proof together
overwhelmingly shows.
We have examined defendant’s remaining contentions
and find them unavailing.
Accordingly, the judgment of the Supreme Court, New
York County (Leslie Crocker Snyder, J.), rendered Novem-
ber 29, 2000, convicting defendant, after a jury trial, of
murder in the second degree, and sentencing him to a
term of 20 years to life should be affirmed.
All concur.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION,
FIRST DEPARTMENT.
ENTERED: OCTOBER 22, 2002
CLERK
App. 48
State of New York
Court of Appeals
BEFORE: HON. RICHARD C. WESLEY
Associate Judge
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent, CERTIFICATE
-against- DENYING
ROBERT BIERENBAUM, —
Appellant.
I, RICHARD C. WESLEY, Associate Judge of the
Court of Appeals of the State of New York, do hereby
certify that upon application timely made by the above-
named appellant for a certificate pursuant to CPL 460.20
and upon the record and proceedings herein,* there is no
question of law presented which ought to be reviewed by
the Court of Appeals and permission is hereby denied.
Dated at Geneseo, New York
10 March, 2003
/s/ Richard C. Wesley
Associate Judge
* Description of Order: Order of the Appellate Division, First
Department, entered October 22, 2002, affirming a judgment of the
Supreme Court, New York County, rendered November 29, 2000.
EPRI REYES PLN ES LS LIN SOIREE TY IO LCL ILE ELE SELEY MIE HT TI” LONE SR I IRON INS IE PENI PALS FE SAE A RO PERL SS ™ eon em - Cheat ie
™ 7
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