Pubdate: Sat, 02 Jul 2005
Source: Ogdensburg Journal/Advance News (NY)
Copyright: 2005 Johnson Newspaper Corp.
Author: Charles W. Kelly
Bookmark: (Cannabis)


ROCHESTER - A Rochester man who was convicted of first-degree
possession of marijuana in St. Lawrence County has filed a notice of
intention to sue to collect damages against the State of New York for
15 months he spent in state prison that he claims he didn't deserve.

In a statement signed by John J. Burns, 55 Swansea park, Rochester,
before his attorney, who is also a notary public, Burns stated, "As a
result of my arrest and conviction, I was incarcerated for
approximately 799 days in the St. Lawrence County Jail and with the
New York State Corrections. In addition thereto. I lost wages, was
unable to continue relationships with friends and family and otherwise
suffered both physical, emotional pain and suffering."

His attorney, John J. LaDuca, of the LaDuca Law Firm, also of
Rochester, had New York State Attorney General Eliot Spitzer served
with the notice of claim, according to Burns.

Burns said his attorney intends to amend the claim papers to include
St. Lawrence County with the state when the formal suit is filed with
the state' s Court of Claims.

The notice of claim reads in part, "John J. Burns against the State of
New York is for unjust imprisonment and conviction following my arrest
on Jan. 28, 2002, for Criminal Possession of Marijuana, first degree,
and ultimate release from prison on April 13, 2005 following a
decision of the Appellate Division, Third Department, reversing the
conviction and dismissing the indictment."

Burns said that he was "illegally being detained." The claim seeks
unspecified damages based on an appeals court ruling that his
conviction for first-degree criminal possession of marijuana was
improper and had to be dismissed.

Burns was convicted on Nov. 20, 2003, after being charged with
possessing 30 pounds of marijuana that was found in the trunk of a car
in which he and two other men were riding. He was reportedly the
passenger in the right front seat. The car was stopped on State
Highway 37, town of Louisville, by a U.S. Border Patrol agent while
the men were reportedly returning to Rochester from the Akwesasne
Casino in Hogansburg.

Burns maintained his innocence from the time of his arrest, stating he
had simply accompanied the other men, John M. Rizzo and Kevin Perri,
on a gambling trip and knew nothing of the drug purchase.

Perri was never indicted. Rizzo pleaded guilty to second-degree
criminal possession of marijuana and was sentenced to five years
probation under the terms of a plea agreement that required him to
testify against Burns.

The Appellate Division of state Supreme Court in Albany overturned the
conviction after concluding there was no proof that Burns ever
exercised "dominion or control" over the marijuana.

He said after the ruling that he planned to file suit against retired
County Judge Eugene L. Nicandri, who presided at the trial, County
Judge Jerome J. Richards, who was the county's district attorney
during the case, and acting District Attorney Gary W. Miles, who
prosecuted the case as Richards' chief assistant. His claim will
apparently be heard in the state Court of Claims. Attorney James
Monroe, Canton, represented Burns at trial. Burns' appeal was handled
by Attorney Richard Manning, Parishville.
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