SEX ABUSE RETRIAL MAY BEGIN SOON

Appeals court overturns ex-neurologist's conviction

JORDAN CARLEO-EVANGELIST STAFF WRITER
Section: Capital Region,  Page: B1

Date: Wednesday, December 2, 2009

Correction: A headline on a story in Wednesday’s Capital Region section about the Court of Appeals overturning the conviction of Phillip Riback misstated the status of his case in Albany County Court. While prosecutors are proceeding as though they will retry Riback, no formal decision has been made.

ALBANY -- Phillip Riback, a former pediatric neurologist sentenced to 48 years in prison for sexually abusing his young patients, could be back in a county courtroom within a week after the state's highest court on Tuesday overturned his conviction, citing prosecutorial misconduct.


Riback, 52, formerly of Slingerlands, will soon be transferred to the Albany County jail from Green Haven Correctional Facility, a maximum security prison in the Hudson Valley, according to his attorney.


Once back in Albany, Riback will be entitled to a bail hearing while prosecutors decide what to do with the case in the wake of the Court of Appeals' stunning reversal of his high-profile June 2004 conviction on 28 charges, including sodomy and sexual abuse.


In ordering a new trial, the high court said County Judge Stephen Herrick erred in allowing an expert witness for the prosecution, Dr. Richard Hamill, to define "pedophilia" and the "central characteristics" of a pedophile for the jury.


Hamill's testimony, the court ruled, "became a springboard" for then-Assistant District Attorney Peter Torncello to launch into a series of "improper comments" in his closing argument, including calling Riback a pedophile and suggesting to jurors that Riback had abused dozens of children for whom he was not charged simply because their parents did not want them to testify.


"No evidence supported this suggestion, which was irrelevant to the charges against defendant even if true," the high court's seven judges unanimously ruled Tuesday.


In a statement, District Attorney David Soares said he was disappointed in the court's decision but vowed to "vigorously pursue justice for the victims in this case."


Whether that means a second prosecution remains to be seen, contingent in large part on whether the victims -- more than a dozen of whom testified against Riback and who ranged in age from 10 to 20 -- want to participate in a second trial.


Soares acknowledged that "victims have moved on with their lives and many times, especially cases involving sexual abuse, do not want to relive the trauma they experienced."


For now, the case has been assigned to Assistant District Attorney Shannon Sarfoh and is back on Herrick's calendar.


Soares stressed that the errors cited occurred during the prior administration of District Attorney Paul Clyne and said that "in preparation for the return of this case, we will review the prosecution in its entirety to avoid making the same mistakes."


"In each case prosecuted by this office, we take every precaution to ensure that proper procedure is followed," he said.


Torncello, who is now the Albany County public defender, could not be reached for comment.


Riback's three-week trial became a spectacle not just because of the bizarre accusations -- among them that he forced some of his victims to pretend to spit on him -- but because before his arrest Riback was considered one of the best in the area for treating children with brain disorders.


A string of patients' parents and former employees at Upstate Neurology Associates in Colonie, however, testified in Riback's defense.


His arrest led also to a change in state law that now requires state Health Department officials to report any suspected criminal activity by doctors to local prosecutors.


After his conviction, Riback was ordered by the state's Board for Professional Medical Conduct to surrender his physician's license.


Riback's New York City attorney, Paul Shechtman, hailed the court's decision.


"This case involves high-profile allegations of child abuse, and the fact that our Court of Appeals reviewed the record dispassionately and reversed Dr. Riback's conviction is a tribute to an independent judiciary," Shechtman said.


Last year, at Shechtman's urging, a midlevel appellate court slashed Riback's sentence from 48 years to 20.


Shechtman said Riback still has ties to the area, including his wife.


"He has no intention of returning to the practice of medicine," his attorney said, "he just wants to move forward with his family and his life."


Jordan Carleo-Evangelist can be reached at 454-5445 or by e-mail at jcarleo-evangelist@timesunion.com.