APPEAL TRIMS 48-YEAR TERM

Citing a rejected plea deal, ruling gives former physician 20 years in pedophile case

ROBERT GAVIN STAFF WRITER
Section: Capital Region,  Page: B1

Date: Saturday, December 27, 2008

ALBANY -- Once-prominent pediatric neurologist Phillip S. Riback will serve 28 fewer years behind bars for his 2004 conviction for sodomizing and abusing several young male patients.


The former Slingerlands physician was sentenced to 48 years at maximum security Green Haven Correctional Facility in Dutchess County. The Appellate Division of state Supreme Court reduced his sentence to 20 years, according to its decisions released Wednesday.


The doctor's conviction was upheld 4-1, with Justice Bernard J. Malone finding Riback deserved a new trial because of prejudicial testimony and a prosecutor's words.


Riback, now 51, was a pediatric neurologist at Upstate Neurology Consultants on Atrium Drive in Colonie when he was arrested in November 2002. By the time of his June 2004 trial, several more victims had come forward, revealing inappropriate touching and bizarre behavior, such as forcing them to pretend to spit on him.


The allegations spanned from 1997 to late 2002. Authorities said Riback would ask mothers to leave the exam rooms before abusing the victims.


He was convicted after a three-week trial in Albany County Court that featured testimony from 14 boys, none of whom knew each other. That October, Judge Stephen Herrick sentenced Riback to 48 years for first-degree sodomy, sexual abuse, forcible touching, course of sexual conduct against a child and child endangerment.


In its decision, the Appellate Division rejected Riback's arguments, which included his contention that the prosecution deprived him of a fair trial in its closing statement.


The Appellate Division did find "certain remarks exceeded the bounds of fair advocacy,'' but added, "we find that they were not so egregious or prejudicial as to deprive defendant of a fair trial and did not operate to detract the jury from the issue of his guilt of the crimes charged."


Then-prosecutor Peter Torncello, now the Albany County public defender, referred to Riback as a "pedophile" in his summation.


The Appellate Division called it a "fair comment on the properly admitted expert testimony and on the defense summation," adding, "We do not find that these limited remarks or any other aspects of the summation sidetracked the jury from the issue of defendant's guilt or innocence, were irrelevant to the crimes charged ... or rose to the level of depriving defendant of a fair trial."


The appeals court lessened Riback's sentence, noting he was offered a 5- to 7-year plea deal to conclude the case. To allow such a plea -- then get a 48-year sentence -- "strikes us as too extreme," the court said.


The court decided to run nine of Riback's four-year terms, which were consecutive, at the same time. They will be added to other terms to equal 20 years, the court ruled.


In his dissenting opinion, Justice Malone called it "error" to allow the prosecution to bring in expert testimony from psychologist Richard Hamill. The witness had been "called for the stated purpose of explaining why abused children will often initially deny the fact that they were abused, and then, over objection, to describe the terms 'sexual fetish' and 'pedophilia" to the jury.


"This mistake by County Court then rose to the level of reversible error," Malone continued, "when the prosecutor, in the course of his passionate summation, twice referred to defendant as a pedophile and said that this was why defendant was having sex with young boys in his office and could not stop."


Riback's medical license, which he had since 1985, was permanently revoked after his conviction.


Robert Gavin can be reached at 434-2403 or rgavin@timesunion.com.