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Drake’s third murder trial likely is months away

LOCKPORT – The third murder trial for Robie J. Drake, twice convicted of murder in the killing of two North Tonawanda teenagers 33 years ago, likely is months away, it became apparent in State Supreme Court session Thursday.

Much pretrial wrangling over witness availability and other issues lies ahead. Justice Richard C. Kloch Sr. said he was prepared to announce rulings on the outstanding issues Thursday, but Assistant Public Defender Christopher A. Privateer, representing Drake, said he wanted a chance for a written rebuttal to a prosecution brief, followed by oral arguments. Kloch set arguments for June 12.

Both of Drake’s previous convictions were overturned on appeal. Last fall, the third trial was scheduled for March 10, but that was scrubbed as the defense unsuccessfully sought a change of venue because of allegedly prejudicial pretrial publicity. The Appellate Division of State Supreme Court said no.

Drake, now 49, admitted during his second trial in 2010 that he killed two fellow North Tonawanda High School students, Steven Rosenthal, 18, and Amy Smith, 16, with rifle fire on Dec. 5, 1981.

The question is whether Drake, then 17, knew there was a couple inside the rusted-out Chevrolet in the parking lot of a River Road factory shortly before midnight. Drake has contended he was simply out to vandalize the car.

Both juries rejected the option of convicting Drake of second-degree manslaughter for reckless killing. If they had done so, Drake would be out of prison by now, since the maximum sentence would have been 30 years. Kloch sentenced him to 50 years to life after his second conviction.

Drake was convicted of two counts of second-degree murder in 1982, but 27 years later that conviction was set aside by the U.S. Second Circuit Court of Appeals because of misconduct by then-Niagara County District Attorney Peter L. Broderick Sr., who used a purported expert witness with bogus credentials who committed perjury with Broderick’s knowledge.

The 2010 trial before Kloch ended with the same double murder verdict, but in April 2012, the Appellate Division of State Supreme Court overturned it because Kloch had allowed the use of irrelevant evidence about a bite mark on Smith’s breast. Information about the bite mark has been banned from the third trial.