## Facts

- Robert Bierenbaum, a surgeon and licensed pilot, was convicted of second-degree murder for killing his wife, Gail Katz Bierenbaum, on July 7, 1985; her body was never recovered.
- The prosecution presented a wholly circumstantial theory that he killed her in their Manhattan apartment, transported her to a New Jersey airport, flew over the Atlantic Ocean, and discarded her remains.
- The couple’s marriage involved frequent conflict, including threats against Gail and a prior violent incident in 1983 in which Bierenbaum choked her unconscious.
- Witnesses testified that Gail reported fear of her husband and described threats and violence.
- A psychiatrist who treated Bierenbaum issued a warning letter to Gail about the danger he posed; the jury learned of the letter’s existence and nature through trial testimony.
- It was conceded that Gail died on July 7, 1985, and the evidence supported that Bierenbaum was the last person known to be alone with her until about 11:00 a.m. that day.
- The People introduced evidence that Bierenbaum rented and flew a small airplane that day and later gave inconsistent accounts or omitted that flight, supporting an inference of consciousness of guilt.
- The People also introduced expert and demonstrative evidence (medical examiner, police pilot, and others) addressing whether one person could quickly dismember a body, package the remains, and discard them from a small aircraft.

## Issues

1. Whether the circumstantial evidence was legally sufficient and whether the verdict was against the weight of the evidence.
2. Whether admitting evidence concerning a psychiatrist’s warning letter to the victim violated the psychotherapist–patient privilege or was unfairly prejudicial.
3. Whether the trial court improperly admitted the victim’s out-of-court statements (including statements offered as excited utterances) and evidence of the 1983 choking incident.
4. Whether the court abused its discretion by admitting expert and demonstrative evidence about the feasibility of dismemberment, packaging, and disposal from an airplane.

## Decision

- The Appellate Division, First Department affirmed the conviction and sentence.
- The court held the circumstantial evidence, viewed as a whole, supported guilt beyond a reasonable doubt and the verdict was not against the weight of the evidence.
- The court upheld admission of testimony about the psychiatrist’s warning letter, concluding the privilege yielded under a clear-and-present-danger rationale and the probative value outweighed prejudice.
- The court sustained most rulings admitting the victim’s statements for permissible non-hearsay or limited purposes (including state of mind), and upheld admission of the 1983 choking evidence as relevant to motive, intent, and relationship context.
- The court found error in admitting certain statements as excited utterances but ruled the error harmless given the strength of the remaining proof.
- The court upheld admission of the expert and demonstrative feasibility evidence as within the experts’ competence and helpful to the jury.

## Legal Principles

- A murder conviction may rest entirely on circumstantial evidence, including in a “no body” case, if the proof collectively supports guilt beyond a reasonable doubt.
- Evidence of prior violence and threats in an intimate relationship may be admissible to prove motive, intent, and the nature of the relationship, and is not barred as propensity evidence when offered for those purposes with appropriate limits.
- A victim’s out-of-court statements may be admissible for non-hearsay purposes such as showing the victim’s state of mind or to provide relationship and motive context; the excited utterance exception requires a sufficient showing of spontaneity and temporal proximity to the startling event.
- The psychotherapist–patient privilege is subject to a limited exception when disclosure is necessary to address a clear and present danger to an identifiable person, permitting evidence concerning a warning to the threatened party.
- Trial courts have discretion to admit expert opinion and demonstrative evidence that assists the jury in evaluating the feasibility of the prosecution’s theory; evidentiary error warrants reversal only if it is not harmless in light of the whole record.

## Conclusion

The court affirmed Bierenbaum’s second-degree murder conviction, holding that the circumstantial evidence formed a persuasive account of guilt, the psychiatrist warning evidence and relationship evidence were properly admitted for non-propensity purposes, and the only identified hearsay mistake (excited utterance admission) did not require reversal because it was harmless.


People v. Bierenbaum, 301 A.D.2d 119 (N.Y. App. Div. 1st Dep’t 2002)