By SUE BOTSFORD
PLATTSBURGH — A state appeals court has sent an inmate's case back to Clinton County Court for a new trial.
Yahkimi Gomez-Kadawid, 43, was convicted after a trial in November 2007 of first-degree promoting prison contraband and seventh-degree criminal possession of a controlled substance.
According to the ruling by the Appellate Division of State Supreme Court, when correction officers frisked Gomez-Kadawid, they discovered three packs of heroin concealed in a flap of the pants he was wearing.
The appeals court said the verdict was not against the weight of evidence. Also, Gomez-Kadawid did not contest the testimony of the correction officer saying how they recovered the evidence. The only element at issue was whether the prisoner knowingly possessed the heroin.
The defendant and two other inmates testified that inmates in the hospital ward were denied access to a change of clothing.
But Gomez-Kadawid testified that he found the pants he was wearing.
The correction officers testified he acted nervous before the frisk and that the heroin caused a substantial bulge in the material over the zipper of the pants. Therefore, there was sufficient evidence for the jury to convict.
However, the District Attorney's Office made an error when it failed to preserve the pants as evidence, according to the appeals court.
There was testimony that all inmate clothing is imprinted with the assigned inmate's name and identification number. This would have clearly identified the pants' owner, the justices noted.
Because of the error, some sanction is required, the appeals court wrote.
Dismissal of the indictment is not warranted, the justices said. But an instruction should have been given to the jury about the missing pants and Gomez-Kadawid's inability, without them, to definitely prove they were not his.
Therefore, the appeals court said, a new trial is necessary so the jury can be properly instructed.
Gomez-Kadawid, according to Department of Corrections records, is serving time at Auburn Correctional Facility. His original conviction was for second-degree criminal possession of a weapon.
E-mail Sue Botsford:
botsford@westelcom.com
