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Misdemeanor Sex Crime Complaint Filed Against Former N.Y. Gov. Andrew Cuomo; Local District Attorney Appears Blindsided by Sheriff’s Actions

NEW YORK, NEW YORK - MARCH 24: New York Governor Andrew Cuomo speaks during a news conference at his office on March 24, 2021 in New York City. (Brendan McDermid-Pool/Getty Images.)

NEW YORK, NEW YORK – MARCH 24: New York Governor Andrew Cuomo speaks during a news conference at his office on March 24, 2021 in New York City. (Photo by Brendan McDermid-Pool/Getty Images.)

Law&Crime has obtained a copy of a misdemeanor complaint charging former New York Gov. Andrew Cuomo (D) with a single sex crime.  It alleges that Cuomo “committed the Class A misdemeanor of Forcible Touching” under Section 130.52 of the New York State Penal Law while on the second floor of the governor’s mansion between 3:51 p.m. and 4:07 p.m. on Dec. 7, 2020.

“A person is guilty of Forcible Touching when such a person intentionally, and for no legitimate purpose forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the actor’s sexual desire,” the document states.

The name of the alleged victim has been redacted from the form.

The complaint document, which Law&Crime obtained from a source closely connected to the case, contains a court clerk’s stamp dated Thursday, Oct. 28.  It was signed by Amy Kowalski, an investigator from the Albany County Sheriff’s Office.

New York Attorney General Letitia James (D), who is reportedly planning to announce her own run for governor, said the criminal case demonstrated the effectiveness of her own office’s handling of the matter.

“From the moment my office received the referral to investigate allegations that former Governor Andrew Cuomo sexually harassed multiple women, we proceeded without fear or favor,” James said. “The criminal charges brought today against Mr. Cuomo for forcible touching further validate the findings in our report.”

Albany County District Attorney David Soares (D) suggested he was in the dark about the matter.

“Like the rest of the public, we were surprised to learn today that a criminal complaint was filed in Albany City Court by the Albany County Sheriff’s Office against Andrew Cuomo,” Soares said in a statement released on Twitter after several hours of silence on the matter. “The Office of Court Administration has since made that filing public. Our office will not be commenting further on this case.”

Albany County Sheriff Craig Apple (D) released a statement indicating that a summons had, indeed, been issued for the governor’s appearance in court.

“On Thursday, October 28, 2021, Sheriff’s Investigators presented Albany City Court with evidence for their review to determine the most appropriate legal pathway moving forward on the investigation,” the statement indicates.  “Sheriff’s Investigators have been conducting an investigation into former Governor Andrew Cuomo since August 5, 2021 for a criminal complaint of forcible touching and have determined that there was enough probable cause to present evidence to the court. Albany City Court has issued a Criminal Summons for Andrew M. Cuomo to appear in court on November 17, 2021 at 2:30 p.m.”

The Albany, N.Y. Times Union reported earlier that a separate criminal summons “was prematurely issued . . . after a sheriff’s investigator filed paperwork with the court summarizing their investigation and seeking to begin the process of obtaining a criminal complaint.”  The sheriff’s statement appears to conflict with that the Times Union report.

Apple’s move employed a rarely used New York procedural mechanism that allowed the sheriff’s office to effectively bypass the DA’s office and to go straight to the court, a law enforcement source familiar with New York criminal procedure law told Law&Crime.  However, because the DA’s office was not involved in pressing the matter, Cuomo’s attorneys will be allowed under the law to challenge the sufficiency of the charging document.

Rita Glavin, Cuomo’s attorney, signaled that she would mount such a challenge.

“Governor Cuomo has never assaulted anyone, and Sheriff Apple’s motives here are patently improper,” Glavin said.  “Sheriff Apple didn’t even tell the District Attorney what he was doing.  But Apple’s behavior is no surprise given (1) his August 7 press conference where he essentially pronounced the Governor guilty before doing an investigation, and (2) his Office’s leaking of grand jury information.  This is not professional law enforcement; this is politics.”

Under New York criminal procedure law, a summons is separate from an accusatory instrument.  As the law points out, an accusatory instrument does precisely what its title suggests — it makes accusations and commences a criminal action.  The misdemeanor complaint filed Thursday against Cuomo is an example of one type of accusatory instrument.  Here’s Section 100.10 of the criminal procedure law:

A “misdemeanor complaint” is a verified written accusation by a person, filed with a local criminal court, charging one or more other persons with the commission of one or more offenses, at least one of which is a misdemeanor and none of which is a felony. It serves as a basis for the commencement of a criminal action, but it may serve as a basis for prosecution thereof only where a defendant has waived prosecution by information pursuant to subdivision three of section 170.65.

A summons, however, orders a defendant to appear before a judge to actually face the accusations.  Here’s the precise language of Section 130.10:

A summons is a process issued by a local criminal court directing a defendant designated in an information, a prosecutor’s information, a felony complaint or a misdemeanor complaint filed with such court, or by a superior court directing a defendant designated in an indictment filed with such court, to appear before it at a designated future time in connection with such accusatory instrument. The sole function of a summons is to achieve a defendant’s court appearance in a criminal action for the purpose of arraignment upon the accusatory instrument by which such action was commenced.

Other rules apply to the type of information required in an accusatory instrument.

It is more common in a New York misdemeanor case for a law enforcement officer to write an appearance ticket to secure a defendant’s eventual presentment before a judge.  That process is outlined under yet another section of New York’s Criminal Procedure Law.

Amid multiple accusations of sexual harassment and growing calls for his impeachment, Cuomo announced Aug. 10 he would resign after a 14-day transition.  Gov. Kathy Hochul assumed office at midnight on Aug. 24.

The governor initially tried to remain in office following the release of a 165-page investigative report from the Attorney General’s office featuring complaints from 11 women.  The accusers alleged everything from harassment to a groping incident that the governor’s own lawyer characterized as a claim of “assault.”

The Albany County Sheriff’s Office said a few days prior to the then-governor’s resignation announcement that one of Cuomo’s accusers had filed an official complaint.  Sheriff Apple, in a rare Saturday news conference on Aug. 7, pointed reporters to the Attorney General’s 165-page report and said in reference to one accuser that “at this point, I’m very comfortable and safe saying that she is, in fact, a victim.”

The next day, Cuomo executive assistant Brittany Commisso went public for the first time, saying, “What he did to me was a crime.”

Read the Oct. 28 charging document below.

Law&Crime’s Matt Naham and Adam Klasfeld contributed to this report.

Editor’s note:  this report, which began as a developing story, has been updated.  

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.