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Third trial ordered in 1981 slayings

A judge's alleged mistakes have caused an appeals court to order a third trial for a North Tonawanda man who has been convicted twice of murdering two high school classmates more than 30 years ago.

The Appellate Division of State Supreme Court on Friday unanimously overturned the conviction of Robie J. Drake in the rifle slayings of Steven Rosenthal, 18, and Amy Smith, 16, on Dec. 5, 1981.

Drake, now 47, was convicted of two counts of second-degree murder in a trial in Niagara County Court in October 1982.

The U.S. 2nd Circuit Court of Appeals threw out the convictions in 2009 because of prosecutorial misconduct.

A new trial was held in March 2010, and the result was the same. State Supreme Court Justice Richard C. Kloch Sr. sentenced Drake to 50 years to life in prison, a stiffer sentence than the 40-to-life term he received in 1982.

But Friday, a five-judge appeals panel in Rochester said Kloch allowed evidence to be introduced against Drake that should have been disallowed.

The subject matter was the same as that which produced the annulment of Drake's first conviction: a purported sexual assault on Smith after she was killed, allegedly demonstrated by bite marks on her breast.

Drake, 17 at the time, was not charged with a sex crime. The Appellate Division said Kloch's decision to allow the evidence was unnecessary and highly prejudicial.

"I told him so," defense attorney Andrew C. LoTempio said. "I told him about all the sex stuff: 'Why are you letting any of this in? That's the reason it came back [on appeal] in the first place.' "

The federal court ruled that in 1982, then-Niagara County District Attorney Peter L. Broderick Sr. used a bogus expert witness to claim Drake suffered from "a fictional syndrome of sexual dysfunction."

The Appellate Division said Friday that because LoTempio called an expert witness to try to dispute the evidence of the sexual assault, "There was a trial within a trial on the issue [of] whether an uncharged crime had actually been committed. That was error."

"Why prejudice the defendant with all these horrible, heinous accusations? How do you not hate the guy when you hear that?" LoTempio said.

Assistant District Attorney Thomas H. Brandt, who handled the 2010 trial, said he was surprised by Friday's ruling.

He said the defense had not presented any evidence disputing "the post-mortem nature of the bite marks" when Kloch made his pretrial ruling on admissibility.

The jury had a choice between second-degree murder and second-degree reckless manslaughter, after Drake took the stand and admitted firing his rifle repeatedly into what he said he thought was an abandoned, unoccupied junk car in a North Tonawanda parking lot.

Smith was shot twice in the back of the head, while Rosenthal was hit by 14 bullets in the face, neck and chest.

"They ought to just let him plead to the manslaughter and call it a day," LoTempio said.

Such a plea would result in Drake's immediate release from prison. The maximum sentence for two counts of second-degree manslaughter is 30 years.

"No manslaughter pleas," Brandt vowed. "At the end of a trial, we'd never do worse than that."

He also said the District Attorney's Office will appeal Friday's ruling.

email: tprohaska@buffnews.com