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People v. Riback

December 1, 2009


The opinion of the court was delivered by: Read, J.

This opinion is uncorrected and subject to revision before publication in the New York Reports.

In late 2002, defendant Phillip Riback, a pediatric neurologist, was charged with criminal conduct involving sexual contact with 14 young male patients whom he treated between 1997 and 2002. There was extensive media coverage of defendant's arrest and the charges he faced. At a lengthy trial in June 2004, the prosecution presented testimony from the 14 boys and their parents; the two police investigators who interviewed these children; a medical conduct investigator for the New York State Department of Health; a pediatric neurologist; and Dr. Richard Hamill, a psychologist who oversees one of the State's largest sex offender treatment programs. The defense called personnel from defendant's medical practice -- the administrator, nursing supervisor, medical secretary, and defendant's secretary; and the parents of four other boys whom defendant had treated. Defendant did not testify. The defense theory, pursued through cross-examination of the People's witnesses and in defendant's direct case, was that any unusual behavior that defendant displayed toward his patients was designed to create rapport and put them at ease; and that the most damning accusations made against him were the distorted or mistaken product of suggestive and coercive questioning by parents and police.

The jury convicted defendant of 12 felonies and 16 misdemeanors, and County Court imposed a determinate sentence of 48 years of imprisonment and five years of postrelease supervision. Defendant then moved pursuant to Criminal Procedure Law § 440.10 to vacate the judgment of conviction and sentence based upon evidence turned up during discovery in follow-on civil litigation and his posttrial diagnosis with Asperger's syndrome. County Court issued an order denying the motion, and the Appellate Division granted defendant permission to appeal the order, which was consolidated with his direct appeal. The Appellate Division subsequently affirmed both the judgment and the order, with one Justice dissenting as to the judgment. The court exercised its interest-of-justice jurisdiction to reduce defendant's sentence to 20 years, and the dissenting Justice granted defendant leave to appeal to us. We now reverse.

Defendant advances two arguments: that the trial court erred by allowing Dr. Hamill to testify about the meaning of the terms "pedophilia," "ephebophilia," and "sexual fetish"; and that the prosecutor's summation deprived defendant of a fair trial. In addition to disputing both propositions on the merits, the People contend that defendant abandoned his argument about the admissibility of Dr. Hamill's testimony when he did not press it in the Appellate Division, and, in any event, that defendant did not preserve this claim for appellate review by making a specific objection at trial (see Criminal Procedure Law § 470.05 [2]).

We may resolve "any question of law involving alleged error . . . in the criminal court proceedings . . . regardless of whether such question was raised . . . upon the appeal to the intermediate appellate court" (Criminal Procedure Law § 470.35 [1] [emphasis added]; see People v Colon, 71 NY2d 410, 413 n 1 [1988]). For purposes of determining whether we may reach the alleged trial error in this case, the only relevant consideration is whether the specific issue was presented to the trial court for decision.

Here, defense counsel did not object when the prosecutor asked Dr. Hamill to define the term "ephebophilia."

As a result, defendant's argument to us -- that the trial judge erred when he allowed this testimony because it was not helpful to the jury and was potentially very prejudicial -- is not preserved for our review. Defendant did, however, preserve this argument with respect to Dr. Hamill's testimony on the meaning of "sexual fetish" and "pedophilia." This is apparent from the judge's on-the-record explanation -- after untranscribed conferences with the attorneys to hash out the scope of Dr. Hamill's testimony -- of why he decided to allow the People to "inquire into the area of sexual fetish," which was followed by a discussion regarding the permissible extent of Dr. Hamill's testimony about "pedophilia." Defense counsel objected after the explanation, and again after the discussion. Although these objections were general in nature, the judge's rulings only make sense as a response to arguments that Dr. Hamill's testimony about "sexual fetish" and "pedophilia" would not be helpful to the jury and was potentially very prejudicial.

As to the merits, we conclude that the trial judge did not err when he allowed Dr. Hamill to explain what the term "sexual fetish" means and to give some examples, none of which described any specific behavior that defendant was alleged to have exhibited. This testimony, which County Court took obvious care to circumscribe, was beyond the ken of the average juror and was arguably useful to these jurors in their evaluation of the evidence. We conclude, however, that the trial judge should not have allowed Dr. Hamill to define "pedophilia" and the "central characteristics" of a "pedophile." Unfortunately, it is difficult to imagine that this information was unknown to the jurors. Whether this error alone would cause us to reverse the judgment in this case is beside the point, though, because this testimony became a springboard for the prosecutor to venture well beyond the evidence and the bounds of fair comment during his summation.

The prosecutor told the jurors that they "heard the definition of a pedophile, didn't you? Did you hear the definition of a pedophile from Dr. Richard Hamill? [Defendant] can't stop." A little later he again linked defendant and the word "pedophile," reminding the jurors that they "heard the definition of a pedophile. He's having sex with boys in his office. He's not concentrating on medicine. He's not concentrating on medical questions. He's concerned with gratifying his own sexual desire."

Over objection and for a limited purpose, the trial judge allowed one of the police investigators to tell the jury that she interviewed 49 boys whom defendant had treated. In summation, the prosecutor parlayed this information into the following:

"[Prosecutor:] [The police investigator] told you that 49 interviews had taken place, and said some of the --they're only charges because she talked to the parents, and the parents didn't want to put their children through this. You got 15 sets of parents out here right now who are probably thinking the same thing after they heard what's going on this week."

"[Defense counsel]: Objection, Your Honor.

"THE COURT: Sustained, stricken. Disregard that, ...

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