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LOCKPORT – A third murder trial for Robie J. Drake – who admitted he killed two North Tonawanda High School students in 1981, but says he didn’t mean to do it – will be needed after the state’s highest court refused to block it.

Niagara County Assistant District Attorney Thomas H. Brandt said this week that the Court of Appeals, without comment, rejected his motion to prevent the new trial.

Drake, 48, has been convicted twice, but both times the conviction was overturned because of legal errors pertaining to the claim that he sexually violated the corpse of one of his victims. Drake has never been charged with any sex crimes.

Brandt had filed his motion in June, and Drake’s third trial, ordered two months previously by the Appellate Division of State Supreme Court, was put on hold awaiting a Court of Appeals ruling.

The Appellate Division of State Supreme Court ruled last April that Drake’s conviction in a 2010 trial was invalid because of what it considered irrelevant and prejudicial evidence that a bite mark was found on the breast of Amy Smith, 16.

Smith and her boyfriend, Steven Rosenthal, 18, were shot to death with a rifle as they kissed in Rosenthal’s 1969 Chevrolet Nova in a parking lot off River Road in North Tonawanda on the night of Dec. 5, 1981.

Smith was shot twice. Rosenthal was shot 14 times and also was stabbed in the chest by Drake.

Drake, a schoolmate of the victims, was 17 at the time. He said he went out that night with a rifle looking to vandalize vehicles, and he said he thought Rosenthal’s Nova was empty and abandoned.

Evidence showed that all the bullets went through the passenger side window. Smith was shot twice in the back of the head and Rosenthal in the face, neck and chest. The angle of impact changed, indicating Drake was getting closer to the car during the shooting.

He was convicted in 1982 of two counts of murder and was sentenced to 40 years to life in prison.

In January 2009, after a long battle by Drake without legal assistance, the U.S. 2nd Circuit Court of Appeals ruled that then-District Attorney Peter L. Broderick Sr. had used a bogus expert witness who accused Drake of suffering from a psychological malady that brought him sexual gratification from sniper activity and stab or bite wounds.

The federal court called that claim “quackery.”

In the 2010 trial, State Supreme Court Justice Richard C. Kloch Sr. allowed Brandt to introduce evidence about the bite mark, over the protests of Drake’s attorney, Andrew C. LoTempio.

He then brought in an expert witness to try to challenge that evidence.

“There was a trial within a trial on the issue [of] whether an uncharged crime had actually been committed. That was error,” the Appellate Division ruled April 27.

After Drake’s conviction in 2010, Kloch sentenced him to 50 years to life, a stiffer term than he received in 1982.

Both juries passed up the option of convicting Drake of second-degree manslaughter for reckless, not intentional, killing.

If Drake had been convicted of that offense, he would be a free man by now, since the maximum sentence for two counts of second-degree manslaughter is 30 years.

Brandt and Assistant District Attorney Peter M. Wydysh are expected to prosecute the case for the second time.

Drake will have his third defense team.

email: tprohaska@buffnews.com