MARIJUANA CONVICTION OVERTURNED

Louisville Traffic Stop Led To Prison Sentence

ALBANY - A state appeals court panel has overturned the
marijuana-possession convictions of a Rochester man who has served 15
months in prison on the charge.

John J. Burns, 40, has been serving a three-to six-year sentence in
the medium-security Washington Correctional Facility, Comstock, after
being convicted of first-degree criminal possession of marijuana Nov.
20, 2003 in St. Lawrence County Court. He would not have been eligible
for parole until Jan. 27.

The county District Attorney's Office did not plan to appeal the
decision by a five-justice panel of the state Supreme Court's
Appellate Division, and likely won't seek to retry the case.

"We knew it was a close case when we filed the appellate brief." Said
Laurie L. Paro, the assistant district attorney who handled the
appeal. Interim District Attorney Gary W. Miles, who was then an
assistant district attorney, prosecuted the case. "I don't believe we
have any plans to re-present it."

The appeals court ruled that the prosecution failed to prove that Mr.
Burns had "dominion or control" over 30 pounds of marijuana found in
the trunk of a car in which he was a passenger. U.S. Border Patrol
agents in January 2002 spotted the car on Route 37 in the town of
Louisville. The three in the car had just come from the Akwesasne
Casino in Hogansburg.

The car's driver, John M. Rizzo, also of Rochester, pleaded guilty to
second-degree criminal possession of marijuana. He was sentenced to
five years' probation in Monroe County after agreeing to testify
against Mr. Burns.

A second passenger, Kevin Perri, also of Rochester, was not
indicted.

The appeals court agreed that there was sufficient evidence that Mr.
Burns at least was aware that marijuana was in the car, a point Ms.
Paro stressed in her brief.

"When I did my appellate brief, I argued the odor of the marijuana was
strong and that was alluded to by the police," she said. "We felt that
common sense was everyone knew the defendant had to know it was in the
car and they were going to the casino to get some."

However, the appeals court ruled that Mr. Burn's "mere knowledge" that
marijuana was in the car was insufficient to establish possession. The
court noted that he did not own the car and did not have keys to it,
and none of his possessions were found in the trunk.

The decision was written by Presiding Justice Anthony V. Cardona with
associate justices Karen K. Peters, Edward O. Spain and Anthony J.
Carpinello concurring. Associate justice Thomas E. Mercure, who also
was on the panel, did not join in the decision.