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Decades apart, same verdict: murder
As in 1982, Drake is convicted of shooting 2 fellow N. Tonawanda High students to death

Two Niagara County juries a generation apart have come to the same conclusion -- that Robie J. Drake intentionally killed two fellow North Tonawanda High School students on the night of Dec. 5, 1981.

A State Supreme Court jury convicted Drake on Tuesday of two counts of second-degree murder in the rifle slayings of Amy Smith, 16, and her boyfriend, Steven Rosenthal, 18, as they sat in Rosenthal's car in the parking lot of a North Tonawanda factory.

It's the same verdict that a Niagara County Court jury reached in October 1982, leading to two sentences of life in prison for Drake, 45. He was 17 at the time of the killings.

Both juries rejected the option of convicting Drake of second-degree manslaughter, or reckless killing, which carries a maximum term of 15 years per victim and, in this trial, would have left Drake eligible for immediate parole.

Drake looked down and shook his head as the jury foreman announced the verdict. There were no outbursts in the courtroom, although some tears were shed by family members of the victims after they left court.

Amy Smith's uncle, Ed Burns, told reporters that the retrial had "a tremendous impact on the family, and they're very well relieved."

Justice Richard C. Kloch Sr., who presided over the 11-day trial, will resentence Drake at 11 a.m. May 27. The jury deliberated for 7 1/2 hours over two days, not counting nearly two hours of having testimony reread.

"Same proof, same outcome," said Assistant District Attorney Thomas H. Brandt, who prosecuted Drake along with his colleague, Peter M. Wydysh.

"Quite frankly, I don't think he meant to kill anyone," said Drake's attorney, Andrew C. LoTempio. "I think it's the wrong verdict, and, yes, we will file a notice of appeal."

Drake was granted a new trial after 27 years of appeals when the U.S. Second Circuit Court of Appeals ruled in January 2009 that an "expert witness" presented at the 1982 trial by then-Niagara County District Attorney Peter L. Broderick Sr. inflated his resume and committed perjury with Broderick's knowledge.

That witness, Richard D. Walter, asserted that Drake suffered from picquerism, a psychological disorder in which sexual pleasure is derived from stabbing -- or, in this case, shooting -- people. The federal court called that "quackery."

This time, Brandt said, forensic evidence was crucial.

Michael B. Dujanovich of the Erie County forensic lab testified that the first two bullets that struck Rosenthal under the nose had followed a horizontal path but that later shots were fired with a downward trajectory.

"There's no question the defendant was on the move, changing his angle of fire," Brandt said. "He advanced on the car and was shooting down at them."

That contradicted Drake's contention that he fired from 10 to 15 feet away and didn't see anyone inside until after he emptied his 19-shot .22-caliber Marlin semiautomatic rifle.

Every bullet went through the passenger side window, which was shattered by the first shot; there were no bullet holes in the door or the fenders.

Also, a test found traces of unburned gunpowder on Rosenthal's vest. Dujanovich testified that such powder could travel no more than 8 feet from the rifle.

Both attorneys agreed that Smith had her back to the window and was shot first, with two bullets striking her in the back of the head. Rosenthal then was shot 14 times in the face, neck and chest. Afterward, Drake stabbed him in the back -- to stop his groaning, he said.

Brandt made much of the fact that Smith was wearing a light blue down-filled jacket, which he said should have been easily visible. There was a dispute over how much light there was in the parking lot of the former St. Mary's Manufacturing, now Confer Plastics, off River Road.

Drake told police at the time, as he testified in this trial Thursday, that he thought the car was empty and merely wanted to vandalize it with gunfire. He said he had shot up other cars before in North Tonawanda.

The defendant also testified that he didn't know Smith or Rosenthal. LoTempio said there were more than 500 students in the North Tonawanda High School senior class that year.

But Brandt said Drake and Smith had lunch at the same time, and a now-deceased classmate, Theresa Wesolowski, testified in 1982 that she saw Rosenthal and Drake shout vulgarities at each other outside the cafeteria one day. That testimony was read to the new jury.

As for not knowing Smith, Brandt told the jury, "I submit to you that Amy Smith was a stunning-looking woman, and I submit that every male in that lunchroom knew who Amy Smith was."

LoTempio said there was no way Drake could have known that Rosenthal and Smith would be in the vehicle at the factory that night.

The jurors made several requests for evidence to be brought to them, including the rifle, Rosenthal's vest and a tape measure and ruler.

Brandt said, "Those questions followed the closing argument I made, and you could tell they were working their way down the arguments I made. I'm glad they were paying attention."

e-mail: tprohaska@buffnews.com

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