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Judge won’t step aside for third Drake murder trial

LOCKPORT – State Supreme Court Justice Richard C. Kloch Sr. on Thursday refused a defense request for another judge to handle Robie J. Drake’s third trial in the rifle slayings of two North Tonawanda teenagers 32 years ago.

“I have no bone to pick with you. I will give you a fair trial,” Kloch told Drake.

Drake and his attorneys, Assistant Public Defenders Christopher A. Privateer and Joseph G. Frasier, had asked Kloch to recuse himself because of comments the judge made in 2010, when sentencing Drake to two consecutive prison terms of 25 years to life.

That day, Kloch called Drake “a very, very dangerous man” and asserted, “You were ready to kill over and over and over again.”

Drake, now 48, has been convicted twice, in 1982 and 2010, of two counts of second-degree murder in the deaths of Amy L. Smith, 16, and her boyfriend Steven Rosenthal, 18.

Both convictions were overturned on appeal, the first because of prosecutorial misconduct and the second because of errors by Kloch on the subject of allowable evidence.

Drake was 17 when he fired 19 rounds from a .22-caliber semiautomatic rifle into a rusty 1969 Chevrolet Nova in a poorly lit factory parking lot off River Road in North Tonawanda just before midnight Dec. 5, 1981.

Drake, who testified in his own defense at the 2010 trial, said that he thought the car had been abandoned and that he was just trying to vandalize it, not realizing that there were people inside.

Prosecutors argued that the accuracy of the shooting – there were no bullet holes in the doors or fenders – showed that Drake must have known what he was doing. They said the first shot shattered the car window, and then Smith was shot twice in the back of the head and Rosenthal was shot 14 times in the face and upper body.

Drake then stabbed the moaning Rosenthal in the chest and drove the Nova to a nearby landfill, where he was caught by police as he was trying to stuff Smith’s body into the trunk of the car.

“Mr. Drake, as you stand before me now, you’re presumed innocent,” Kloch said Thursday.

The defense also objected that Kloch’s law clerk, Ronald J. Winter, used to be a Niagara County prosecutor. But he joined the District Attorney’s Office after the 1982 trial and was working for Kloch during the 2010 trial.

Privateer said Winter, when he was a prosecutor, once signed a letter asking state prison officials to inform the victims’ families if Drake was to be released from prison.

“It leads Mr. Drake to the inevitable conclusion that he had some involvement in the case,” Privateer said.

Kloch denied it but said he would bar Winter from assisting him in the upcoming trial, which has yet to be scheduled. Two law school interns from the University at Buffalo will provide Kloch with any research help he needs.

Much of Thursday’s session was devoted to an alleged conflict of interest for the public defenders. Two potential prosecution witnesses were public defender clients on their own criminal charges in the years after the first trial.

Kloch said he wants the witnesses brought in to say whether they waive such a conflict. If they don’t, Drake would have to obtain a new attorney. No date for that hearing was set.

The witnesses are Eugene Konieczny and Edward A. Cusatis. Konieczny, the leadoff witness in the 2010 trial, was a friend of Drake’s who testified that he saw Drake leave his home carrying two rifles on the night of the slayings.

Cusatis, who testified in 1982 but not in 2010, was a county jail inmate in 1982 who said Drake admitted to him that he shot the victims.

According to court papers filed by Assistant District Attorney Thomas H. Brandt before the second trial, Cusatis testified that Drake “saw blood on the boy’s face or chest and got scared and wiped him out.”

Kloch said he intends to assign attorneys to counsel each of the witnesses about the conflict: Joseph M. LaTona for Konieczny and Joseph J. Terranova for Cusatis. He also assigned attorney John J. Molloy to work with Drake on the issue of the alleged conflict.