In his opening statement counsel told the jury You will also learn that the police conducted a forensic examination of the doctor's apartment, the doctor's car, his friend's car that he borrowed some time that weekend, the airplane and found no evidence of blood or any other biological determinations because this case also turns on the lack of evidence. Id. Given that the videotapes were neither speculative nor lacking in foundation, counsel was not ineffective for failing to object to their admission on that basis. In short, Minot has always been a good place to reinvent oneself or to hide. In the 15 years since his wife, Gail Katz-Bierenbaum, disappeared, Dr. Bierenbaum remarried, had a baby girl and built a thriving medical practice in Minot, N.D. According to her affidavit, she was acutely aware of Katz, who frequently screamed at her husband and walked around noisily in high-heeled shoes. She states that on the morning Katz disappeared, Katz was screaming at someone. In determining whether prosecution has been unduly delayed, a New York court will balance five factors: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay.. Bierenbaum, 44, clasped his hands in front of him and loweredhis head when the verdict was read by the jury forewoman inManhattan State Supreme Court. Dr. Leigh McCullough, Katz's employer in the fall of 1983, noticed bruises on Katz's neck one day. . Never, Bibb told the jurors shortly before they begandeliberations, did Bierenbaum, who has a pilots license, evermention that he had spent nearly two hours flying an airplane theafternoon after his wife was last seen. He has 26 years of experience. Bierenbaum said that she had gone out earlier in the day and had not returned to their apartment. To show ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), Bierenbaum must (1) demonstrate that his counsel's performance fell below an objective standard of reasonableness and (2) affirmatively prove prejudice arising from counsel's allegedly deficient representation. Brown v. Greene, 577 F.3d 107, 110 (2d Cir.2009) (quoting Carrion v. Smith, 549 F.3d 583, 588 (2d Cir.2008)). In their last telephone conversation, Katz told DeCesare that she planned to ask Bierenbaum for a divorce, and that she had secretly borrowed $10,000.00 and put it in a safe deposit box to pay for a year of graduate school. But his life in Minot was already fraying. See Bierenbaum v. Graham, No. Now, you know what his intent was.Trial Tr. Davis had been in a bagel shop in Manhattan on Second Avenue in the 80's on the afternoon of July 7, 1985, and he noticed an attractive woman wearing a distinctive t-shirt with a non-English word on it. Caruana testified that Bierenbaum told her in August or September that his apartment had been searched and that the police had cleared him. Anyone can read what you share. He is a member of the UC San Diego Health Physician Network. I join Judge Sessions's opinion fully because I believe it to be correct on the law. Martin learned that Bierenbaum was a licensed pilot. As a subscriber, you have 10 gift articles to give each month. All rights reserved. First of all, it is not disputed by us that Gail Katz Bierenbaum is dead. Although on this record the Appellate Division could have found a claim of lack of intent to kill unpreserved, it addressed the legal sufficiency of both elements of second degree murder: 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. Bierenbaum, 748 N.Y. S.2d at 579. When Alayne Katz accused him of killing her sister, thedefendant called his missing wife a tramp and said he believedshe had run off with another man. Dr. Ellen Schwartz, a close friend from graduate school, testified that Katz told her she was afraid of her husband, and that she was planning to leave him soon. The United States Supreme Court decisions in Crawford and Davis v. Washington, 547 U.S. 813 (2006), confined the scope of the Confrontation Clause to testimonial statements. E.g., Henry v. Ricks, 578 F.3d 134, 137 (2d Cir.2009). In summation the prosecution improperly argued that Bierenbaum and his attorney prevented the police from conducting a complete search. Forensic tests of two automobiles that Bierenbaum was driving at the time also yielded no results. provider will be able to view your information so they can provide the most informed care and treatment. See Bierenbaum v. Graham, No. Robert Bierenbaum (born July 22, 1955) is an American former plastic surgeon and convicted murderer. Decker, 912 N.E.2d at 1043 (quoting People v. Taranovich, 335 N.E.2d 303, 306 (N.Y.1975)). vol. Under the circumstances, it was reasonable for defense counsel not to call Alvarez. They confronted Dr. Bierenbaum on the steps of the Trinity clinic, but he invoked his right to counsel. Bierenbaum was charged with murder in the second degree in an indictment returned December 8, 1999. In discussing the evidence he also stated. McCullough testified that Katz told her that her husband had gotten angry at her and choked her because she had been smoking a cigarette. The Appellate Division concluded that the trial court's cautionary instructions about the prior assault evidence were legally satisfactory and adequately protected Bierenbaum's right to a fair trial. She kept an appointment with her hairdresser, and met with a close friend that afternoon for a couple of hours. During their second conversation, Bierenbaum told O'Malley that he had been mistaken and that the doorman thought it was another day that he had seen Katz. Courts have also considered the status or relationship to the declarant of the person to whom the statement was made, whether there was a coercive atmosphere, whether it was made in response to questioning and whether the statements reflect an attempt to shift blame or curry favor. Im very relieved, said Alayne Katz. O'Malley met with Bierenbaum on the 13th and requested details of the previous weekend. As Dr. Bierenbaum's social efforts overcame the reserve of his new neighbors, his old neighbors were busy digging up his past. The Appellate Division rejected these claims and affirmed the conviction on October 22, 2002. Though Katz's body has never been found, Bierenbaum was found guilty of . If the jury harbored a reasonable doubt concerning Bierenbaum's guilt, an instruction on jurisdiction would not have assisted the defense. An inspector for the Federal Aviation Administration testified that in his opinion a pilot could singlehandedly dispose of something from the plane without a great deal of difficulty. To prevail on such a claim under federal law, Bierenbaum must prove that the delay resulted in actual prejudice and that the prosecution's reasons for the delay were improper. The decision not to do so was a defensible trial strategy. Bierenbaum told Karnofsky that the police had asked him if he had removed the apartment rug or had it cleaned, and that he had answered that he had not. Katz cooked steaks that night and they had a romantic candlelight dinner. To satisfy the first part of the test-performance-he must show[ ] that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Strickland, 466 U.S. at 687. ''We're from North Dakota and we trust people,'' said Mike Berg, a retired pharmacist and former head of the Rotary Club, who flew to Mexico with Dr. Bob. Think about him looking at her while he squeezes the life out of her. Alayne Katz testified that her sister told her about a letter she had received from Bierenbaum's psychiatrist warning her about Bierenbaum's potential for dangerousness and advising her to move out. The things you loved about AIDS Care have not changed as a result of our name change. The respondents argued this position below, but on further review have withdrawn their argument, agreeing with Bierenbaum that he presented his constitutional claim in his letter brief submitted to the New York Court of Appeals on December 10, 2002. Katz was a graduate student pursuing a Ph.D. degree in clinical psychology at Long Island University. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. Throughout the search for Gail Katz-Bierenbaum, her family said they found her husband decidedly unhelpful. More recently she talked of moving in with a girlfriend in Connecticut. Feb. 25, 2008). Bierenbaum gave detailed statements of his activities to both investigating officers in the days following Katz's disappearance. A forensic examination of the aircraft yielded no results. Its tuition is full-time: $38,920 (in-state) and full-time: $51,175 (out-of-state). ''At first it was just, 'That guy is nothing but strange,' '' said Curt Hussey, operator of the town's private flight school at Pietsch's airfield. 2254(d); see also, e.g., Brown v. Alexander, 543 F.3d 94, 100 (2d Cir.2008). Rivera's testimony was not particularly damaging to Bierenbaum's case. Anthony Segalas testified at trial that he and Katz used cocaine together twice. Dr. Robert Martin Biernbaum, DO is a health care provider primarily located in Rochester, NY, with other offices in Victor, NY and Columbus, OH ( and 2 other locations ). Prior to MultiCare, Biernbaum was Rochester Regional Health System's chief architect for all Epic solutions and in charge of informatics for five hospitals and more than 100 ambulatory sites. Of course, there is another explanation for what drew Dr. Bierenbaum here: the changes in medicine that have allowed the Trinity Health Center, where he worked, to become a regional hub. He completed his Residency in Emergency Medicine from Genesys Regional Medical Center. Local doctors here studied the demographics, and did not think a plastic surgeon would arrive until at least 2005. Who would come willingly to a place where many professionals -- particularly doctors who draw patients from the surrounding 100,000 square miles -- must fly single-engine planes to work? They resided in a twelfth-floor apartment on East 85th Street in Manhattan. Dr. Robert Biernbaum is a Emergency Medicine Physician in Victor, NY. It is not offered for such a purpose and it must not be considered by you for such a purpose. Stay up-to-date with how the law affects your life. With your consent, your healthcare Deborah Prothrow-Stith, M.D. Although there was no evidence to that effect, defense counsel did not object. June Sherman lived directly below the Bierenbaum apartment. RochesterHealth.com is a nonprofit 501(c)(3) community-centered website serving as a connection to Rochester-area healthcare resources. Bierenbaum's attorney gave permission for the police to search for fingerprints and anything that might help them identify Katz. All rights reserved. Bierenbaum was sentenced on November 29, 2000. See Richardson v. Greene, 497 F.3d 212, 217 (2d Cir.2007). The trial court permitted this testimony as background evidence of the state of the marriage and Katz's state of mind, and Bierenbaum's motive, intent and identity. It was not objectively unreasonable to do so. Pablo Alvarez was employed at the apartment building in 1985. The police report also stated that Katz phoned Segalas in June 1985 and asked him to examine some cocaine she had bought, because she thought she had received a short amount. Katz's friend Yvette Feis was in the apartment several days after Katz was reported missing, noticed that the living room rug was gone and asked about it. Please enter a valid 5-digit Zip Code. The motion was denied on September 6, 2005, and leave to appeal was denied on January 12, 2006. The location you tried did not return a result. Id., 744 N.E.2d at 131 (citations, internal quotation marks and ellipses omitted). The location you tried did not return a result. at 1889. When the trial court's attention was drawn to this error, it refused to order a mistrial, but offered an instruction, admonishing the jury that it could draw no negative inference from an individual's acting on advice of counsel. His anger at his wife. Moreover, at that point in the summation, the prosecuting attorney was cataloguing what he termed Bierenbaum's lies-to Dalsass, to O'Malley, to Caruana, and several other witnesses. Rochester, NY - Trillium Health, a community health center with an emphasis on affordable health care and located in downtown Rochester, announced the appointment of Robert "Rob" Biernbaum, D.O. See Williams, 529 U.S. at 413; Ramdass v. Angelone, 530 U.S. 156, 166 (2000); accord Kennaugh v. Miller, 289 F.3d 36, 45 (2d Cir.2002). [T]he question of whether a federal constitutional question was sufficiently asserted in state courts to form the basis of a federal habeas petition is a question of federal law which the federal courts must resolve for themselves. Acosta v. Artuz, 575 F.3d 177, 185 (2d Cir.2009) (quoting DiSimone v. Phillips, 461 F.3d 181, 189 (2d Cir.2006)). Robert Biernbaum Do 259 Monroe Ave, Rochester, NY, 14607 8 other locations (585) 754-7858 Overview Locations OVERVIEW Dr. Biernbaum graduated from the University of New England College of. holds a Master's degree in Epidemiology from the State University of New York at Buffalo and a Doctorate of Osteopathy from the University of New England. In 1984 Katz told her about a time in 1983 when Bierenbaum noticed her smoking a cigarette on the terrace of their apartment, became violent and began choking her. IV, 3212, Oct. 23, 2000. The torso was ruled out as belonging to Ms. Katz-Bierenbaum, whose remains have never been found. Nontestimonial statements therefore do not implicate the Confrontation Clause. The district court determined that Bierenbaum failed to exhaust his state court remedies with regard to his Confrontation Clause claim, finding that he did not argue the claim in his application for leave to appeal to the New York Court of Appeals. Dr. Robert Bierenbaum . Segalas and Katz used cocaine together. See Hemstreet v. Greiner, 491 F.3d 84, 90 (2d Cir.2007). Following the close of evidence, counsel move[d] to dismiss the indictment on the basis that the People have failed to prove their case beyond a reasonable doubt and to the legal standard required for the case to go to the jury. Id. ''I have no idea what you've done in the past, you have no idea what I've done,'' Mr. Hussey concluded last week, after the verdict, seated in a restaurant near Minot International Airport, which has one baggage carousel. Dale Maixner, special agent with the North Dakota Bureau of Criminal Investigations, has another theory: that he was systematically building an image as a person incapable of murder. at 3107, Oct. 23, 2000. The same compassionate staff continues to provide personalized service in the same warm, caring atmosphere you have come to expect. He knew in July of 1985, what it would take to kill her. With the benefit of hindsight, conceding that Katz died on July 7 may seem extraordinary, but at the time counsel would have had reason to believe that the jury was likely to hear from several reliable sources that she had appointments for the next day, and that she would have kept those appointments if she could have. Had the defense gotten Segalas to admit that he and Katz used cocaine on several occasions, the defense suggestion that she may have been killed by drug dealers would still have been plagued by lack of evidence, as the state court noted. Although defense counsel mistakenly referred to the search of Bierenbaum's apartment as a forensic search, omitting the term forensic from counsel's opening statement would not have prevented the prosecution from eliciting Dalsass's testimony that a limited search of the apartment was conducted several weeks after Katz disappeared. In fact, Bibb said, Bierenbaum knew very well that his wife wasdead. Ive waited a very,very long time for this day. Today, local rumor has it, the federal witness protection program relocates people here. 2005 - 2023 WebMD LLC. He received his. The decision not to call Alvarez was within the range of acceptable strategic and tactical alternatives. Luciano, 158 F.3d at 660. In September 1986 Hope Martin, an investigator from the District Attorney's office, was assigned to investigate Katz's disappearance. The defense, knowing that the alternate scenarios for Gail Katz's death had little in the way of factual support, apparently chose to cast all of the scenarios-the prosecution's included-as merely theories, which could not be proven beyond a reasonable doubt. No one in the group would admit to shock when learning of the doctor's past, though the word ''surprise'' brought forth some thoughtful ''mmm-hmms.'' He told O'Malley that Katz was depressed and suicidal. Rochester RHIO. Former NY surgeon admits killing wife, throwing body from airplane in 1985 (NCD) (NCD) NEW YORK Dr. Robert Bierenbaum maintained his innocence in 2000 as he was tried and convicted of killing . Even a neophyte could have found danger. Pressing the point on cross-examination risked alienating the jury for no particular strategic gain. In addition to the evidence detailed above, the prosecution marshaled a wealth of circumstantial evidence that, in the words of the Appellate Division, when attentively review[ed] and critically assesse[d] , and after applying all natural and reasonable inferences, led to the inescapable conclusion that Bierenbaum murdered his wife on July 7, 1985, and the evidence excludes beyond a reasonable doubt any reasonable hypothesis of innocence. People v. Bierenbaum, 748 N.Y.S.2d 563, 574 (N.Y.App.Div.2002). participates with the Rochester RHIO. Chokes her much harder than when he had only strangled her to unconsciousness. Robert "Rob" Biernbaum, D.O. Pro. He has 45 years of experience. Dalsass asked Bierenbaum to narrate specifically and exactly how he spent the weekend that Katz disappeared. The Disappearance of Gail Katz Bierenbaum. 2254 in the United States District Court for the Southern District of New York. That involved advice of counsel. He told the detective that he remained at home until approximately 5:30 p.m., when he left for New Jersey. Bierenbaum had graduated from medical school in 1978, and was a surgical resident at Maimonides Medical Center in Brooklyn, New York. Robert "Rob" Biernbaum, D.O. Claim your profile (701) 780-5260 . The state court concluded therefore that defense counsel was not ineffective for failing to move to dismiss for pre-indictment delay. The prosecution would have argued that even if the jury believed Sherman was testifying truthfully about what she heard, her testimony was consistent with the prosecution's theory that Bierenbaum killed his wife in the course of an explosive argument. Medical School & Residency. With bitter winters and little company, residents here have little use for moral condemnation. The Confrontation Clause of the Sixth Amendment to the United States Constitution states: in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. U.S. Const. New's 2023 Best Medical School Rankings, UCLA's David Geffen School of Medicine ranks higher in its primary care and research compared to other medical schools in L.A. His arrest came nearly 15. After the verdict,Snyder ordered him jailed to await sentencing. Please verify insurance information directly with your doctor's office as it may change frequently. The strategy was a reasonable one, given that the trial court would have provided a limiting instruction along the lines of the one given in the charge. We disagree. He returned from New Jersey at approximately midnight. Had the defense called Alvarez, and had he testified in accordance with his affidavit, the jury would have been presented with the testimony of the relief doorman, who remembered not only the departure of a particular tenant, but what she was wearing on an unremarkable Sunday fifteen years before the trial. Instead the People were allowed to offer such evidence or introduce such evidence solely as probative of or relevant to or to demonstrate defendant[']s intent[-]as they claim[-]to murder Gail Katz Bierenbaum as probative of his identity as the person they claim committed the murder and when they summed up to you and made their arguments, I allowed those arguments on those points. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. Bierenbaum repeated that he had remained in the apartment all day until 5:30 p.m., when he left for the family party in New Jersey, arriving there at approximately 6:30 p.m. Dr. Roberta Karnofsky, an anesthesiologist, had a year-long relationship with Bierenbaum beginning in fall 1985, while she was a medical student under his supervision. When the prosecution gave notice during trial that it had provided copies of the videotapes to the defense, counsel stated I suspect we'll object. The trial judge responded And I suspect I'll allow it. Trial Tr. When two weeks later he saw posters of Katz, he identified her as the woman he had seen, and he called the police. Counsel suggested in his opening statement that You will also learn that she had a drug issue and you will learn at least one of the lovers Gail Katz Bierenbaum took behind Dr. Bierenbaum's back was also someone she shared drugs with, and you will learn it from his own testimony. Trial Tr. at 583. The rule applies with equal force whether the state-law ground is substantive or procedural. Lee v. Kemna, 534 U.S. 362, 375 (2002). A trial court may issue a trial order of dismissal as to any count of an indictment on the ground that the trial evidence is not legally sufficient to establish the offense charged. N.Y.Crim. III, 2820, Oct. 12, 2000. The defense called one witness, Joel Davis. Although Gail's family believed he was responsible for the disappearance, the police could not build a case for a long time as they lacked the body and concrete . The educational structure is rigorous, but the real draw of this school is the open and accepting atmosphere. 2023 Rochester Health, Currently accepting new patients at this location. He said that he had called Katz's mother and two of her friends to see if she was there. Hillard Wiese, Katz's cousin, testified that Katz reported to him in the fall of 1983 that she had an argument with her husband during which he had choked her to unconsciousness. Under Roberts, the statements of an unavailable hearsay declarant were admissible only if [they bore] adequate indicia of reliability, which could be satisfied by demonstrating that the evidence fell within a firmly rooted hearsay exception, or that the evidence had particularized guarantees of trustworthiness. 448 U.S. at 66. He testified that Katz discussed with him her wish to leave her husband, their constant fights and arguments, and one argument during which Bierenbaum put his hands to her neck. He chokes her to death. He knew in July of 1985, what it would take to render her unconscious. Was she killed by drug dealers? Please try again. Proactive and Reactive LiesDuring the trial, defense lawyer David Lewis denounced theprosecutions murder theory as guesswork since there are noeyewitnesses or physical evidence in the death of Katz-Bierenbaum.Lewis said Katz-Bierenbaum is probably dead, but he stated thatnobody knows how or why. These are not the acts of a suicidalperson, she said. Bierenbaum, 748 N.Y.S.2d at 583. [T]o qualify as an adjudication on the merits, a state court decision need not mention a particular argument or explain the reasons for rejecting it. Dallio v. Spitzer, 343 F.3d 553, 560 (2d Cir.2003); see also Brown v. Artuz, 283 F.3d 492, 498 (2d Cir.2004) (finding that Sixth Amendment claim was adjudicated on the merits when state court dismissed it by stating defendant's remaining contentions are without merit.). ''It's the loss of his life and the good he does to help other people. The affair began while Bierenbaum was vacationing in South Hampton on Long Island during the month of August, and lasted about six weeks. Katz told him that she was going to move in with her friend Ellen Schwartz in Connecticut. Robert BIERENBAUM, Petitioner-Appellant, v. Harold D. GRAHAM, The Superintendent of Auburn Correctional Facility, Andrew Cuomo, Attorney General State of New York, Respondents-Appellees. Counsel's theory was that Katz left the apartment on Sunday, and met with foul play after she left. Bierenbaum argued undue pre-indictment delay to the state court in his motion to set aside the judgment. Prior to that date he had not been permitted to enter the apartment. '' The next day, the news hit that he was in New York and under arrest for murder. vol. Image Credit: Stephanie Youngblood/ ABC News 20/20. Failure to cross-examine witness Anthony Segalas concerning Katz's use of cocaine. Bierenbaum, 44, was charged Tuesday with murdering Katz, loading her body into his twin-engine plane and flying out over the Atlantic to dump her in a watery grave. The defendant and his attorney stopped the cops from doing a complete forensic search on the apartment. Surgery, Internal Medicine. Robert "Rob" Biernbaum, D.O. He did not find anything. In 1985 Segalas had told Detective Dalgass that he and Katz used cocaine on numerous occasions. Robert moved to Las Vegas, Nevada in 1989 and set up a medical practice in the city. Your recollection controls. The jury also learned that a Cessna 172 Skyhawk, the airplane that Bierenbaum rented, is a stable, easy-to-handle four passenger aircraft. Its open wheat fields, quiet ways and uncritical embrace of strangers drew two such outsiders here in 1996, a doctor couple from New York and California who had both practiced medicine in Las Vegas. Bierenbaum said he would get back to him, but did not. it is a first professional graduate degree awarded upon graduation from medical school. O'Malley asked if he had ever choked his wife to the point of unconsciousness, and Bierenbaum said that he didn't want to speak about that. On direct appeal, Bierenbaum contended that the trial court erroneously admitted videotapes, demonstrating how a pilot can, without assistance, place a flight bag loaded with one hundred ten pounds of weight into a Cessna 172, fly the plane over the ocean and push it out. On appeal to the Appellate Division, First Department, Bierenbaum presented, among other questions, the following: Whether Dr. Bierenbaum 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 ? Similarly, in his letter seeking leave to appeal to the New York Court of Appeals, he argued that leave should be granted to review the admissibility of background evidence through hearsay declarations, whether in domestic violence cases or otherwise, and to consider whether admission of such evidence denies a defendant his state and federal rights of confrontation.. The passage quoted above demonstrates that the Appellate Division found particularized guarantees of trustworthiness in the challenged statements. If you wanted to start a new life, free of reproach or inquiry, this remote prairie town of 35,500 might be the place. Over defense objection eleven witnesses-friends, relatives, colleagues and Katz's therapist-were permitted to testify about conversations they had with Katz between 1983 and 1985 in which she talked about the state of her marriage, her fear of Bierenbaum's temper, his controlling behavior, his threats, and an argument in 1983 during which he choked her to the point of unconsciousness. holds a Master's degree in Epidemiology from the State University of New York at Buffalo and a Doctorate of Osteopathy from the University of New England. On cross-examination Davis admitted that he had told an investigator for the defense that the woman he'd seen was tall and statuesque, and explained that he had confused his description of the missing woman by likening her to two different women, one tall with her face and one short with her body. N E W Y O R K, Oct. 24, 2000 -- Dr. Robert Bierenbaum, a plastic surgeon who wascharged with killing his wife 15 years ago and dropping her bodyinto the ocean from an airplane, was convicted today ofsecond-degree murder. UC San Diego Health Physician Network is an alliance of health care providers based in San Diego, Riverside and Imperial counties. After Bierenbaum's direct appeal was concluded, he filed a motion with the trial court to set aside the judgment on the grounds that trial and appellate counsel had rendered ineffective assistance of counsel. 2 reviews. [Bierenbaum] tells Karen Caruana, You know the cops searched my apartment. Dr. Robert Bierenbaum is a health care provider primarily located in Grand Forks, ND. The Appellate Division held that Bierenbaum had not effectively protested the admission of the videotapes under New York's preservation rule, which require[s], at the very least, that any matter which a party wishes the appellate court to decide have been brought to the attention of the trial court at a time and in a way that gave the latter the opportunity to remedy the problem and thereby avert reversible error. Richardson v. Greene, 497 F .3d 212, 218 (2d Cir.2007) (quoting Garcia v. Lewis, 188 F.3d 71, 78 (2d Cir.1999)); see N.Y.Crim.



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