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Judge to rule on whether Drake must have a new attorney

LOCKPORT – More complications were added Tuesday to the wrangle over whether Robie J. Drake must have a new attorney for his third trial in two 1981 North Tonawanda slayings.

Niagara County prosecutors are urging the removal of the county Public Defender’s Office from the case because two potential prosecution witnesses were later represented by public defenders in criminal cases of their own.

It was thought those cases were in the distant past, but it was disclosed in court Tuesday that one of the witnesses, Edward J. Cusatis, has a public defender in a current misdemeanor case in Niagara Falls City Court.

“It’s an actual, current, contemporaneous conflict,” Assistant District Attorney Thomas H. Brandt said.

Drake himself wants to keep Assistant Public Defenders Christopher A. Privateer and Joseph G. Frazier as his counsel for the third trial in the case, which is not likely to start until sometime in 2014.

Drake, 48, formally waived the conflict Tuesday, but Cusatis did not.

“He doesn’t want to put himself out there and be cross-examined by people who know his legal history better than anyone else,” said Joseph J. Terranova, the attorney assigned to counsel Cusatis about the conflict situation.

State Supreme Court Justice Richard C. Kloch Sr. said he will rule on the issue Nov. 7.

Assistant District Attorney Peter M. Wydysh said Cusatis faces a Nov. 13 trial on a third-degree assault and harassment case stemming from a domestic incident.

Terranova said that Cusatis “has an extensive criminal record and stints in mental health court. In each of those incidents, the Public Defender’s Office represented him.”

Brandt said, “It would be our position that the Public Defender’s Office could not cross-examine Mr. Cusatis about any of his criminal convictions.”

Kloch said, “I can see there’s a level of comfort between Mr. Drake and the Public Defender’s Office.”

Drake had private counsel for his first two trials.

Attorney John J. Molloy, appointed to counsel Drake about the conflicts, said Privateer and Frazier “are being put in a difficult position, but Mr. Drake is a very intelligent client … He’s comfortable with his decision and he’s very comfortable with the attorneys he’s been assigned.”

Cusatis was in the Niagara County Jail with Drake after the latter’s initial arrest for the Dec. 5, 1981, shooting deaths of Steven Rosenthal, 18, and Amy L. Smith, 16. Cusatis testified in Drake’s first trial in 1982 that Drake told him in jail that he had shot the victims.

Cusatis did not testify in Drake’s second trial in 2010, when Drake took the stand himself and confessed to the killings. Drake asserted he didn’t realize there was anyone in the rusty 1969 Chevrolet Nova that he riddled with rifle fire in a dark factory parking lot off River Road in North Tonawanda.

The jury didn’t believe him and convicted Drake on two counts of second-degree murder, as the first jury in 1982 also had.

The first conviction was thrown out by a federal appeals court in 2009 because of prosecutorial misconduct, and the second verdict was overturned last year when the Appellate Division of State Supreme Court decided Kloch made errors in the 2010 trial regarding the admissibility of evidence.