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Burns Sues State, Claims Prison Time Not Merited

URL: http://www.mapinc.org/drugnews/v05/n1065/a06.html
Newshawk: Larry Seguin http://www.reconsider.org/
Pubdate: Sat, 02 Jul 2005
Source: Ogdensburg Journal/Advance News (NY)
Copyright: 2005 Johnson Newspaper Corp.
Contact: http://www.ogd.com/letter.htm
Website: http://www.ogd.com/
Details: http://www.mapinc.org/media/689
Author: Charles W. Kelly
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BURNS SUES STATE, CLAIMS PRISON TIME NOT MERITED

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.