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Judge Dismisses Misdemeanor Forcible Touching Case Against Former N.Y. Governor Andrew Cuomo, Seals Case File


NEW YORK, NEW YORK - SEPTEMBER 08: New York state Gov. Andrew Cuomo speaks at a news conference on September 08, 2020 in New York City. Cuomo, though easing restrictions on casinos and malls throughout the state, has declined to do so for indoor dining in restaurants in New York City despite pressure from business owners, citing struggles by the city to enforce the state's previous orders.

A judge in Albany, N.Y. on Friday agreed to dismiss a misdemeanor complaint against former New York Gov. Andrew Cuomo (D). The judge, Albany City Court Judge Holly Trexler, also sealed the case file.

Judge Trexler’s move was the result of a motion to dismiss the case by Cuomo’s attorneys, which was not contested by prosecutors with the office of Albany County District Attorney David Soares (D).

The office of Albany County Sheriff Craig Apple (D) filed a misdemeanor complaint against Cuomo in late October 2021. The document accused Cuomo of a single sex crime, forcible touching, under Section 130.52 of the New York State Penal Law. The incident allegedly occurred 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 charging document stated.

The procedure used to file the case, which Law&Crime explained back when the document was filed, was unusual under New York law. The sheriff’s decision to file the matter without consulting the DA’s office left Soares blindsided when the charging document quickly became public. Apple said publicly at the time that he did not believe the document would skyrocket into the public sphere before he had a chance to discuss its filing with the DA’s office. But the move effectively punted the matter into the DA’s hands while giving the public the belief that Apple’s office concluded its review and was ready to move forward.

However, on Tuesday, Jan. 4, Soares announced that his office was dropping the misdemeanor criminal case because he did not believe he could prove the case beyond a reasonable doubt at trial.

“The court determined the complaint was legally sufficient,” said the judge during a brief hearing on Friday. In a recap of the procedural history of the matter, the judge noted that the court issued a criminal summons directing Cuomo to appear for an arraignment.

The parties agreed to waive a formal reading of the charging document, and prosecutors noted that they were consenting to a defense motion to dismiss the case.

“What are the people’s grounds?” the judge asked.

“We have reviewed all of the available evidence and concluded that we cannot successfully secure a conviction,” said one of the prosecutors.

The judge then mentioned that the prosecutor’s office had previously indicated that a “legal impediment” to securing a conviction and “significant” procedural hurdles were connected to the discovery of evidence.

As is common with remote hearings by videoconference, the prosecutor’s signal was marred by severe echos, making the prosecutor’s words difficult to understand. Rita Glavin, one of Cuomo’s attorneys, and the judge spoke up multiple times and asked one of the prosecutors to repeat herself.

“This court is acutely aware of the fact that the district attorney’s office has unfettered discretion to determine whether to prosecute a particular suspect or case,” the judge said in rubbishing the matter. “And, that superior courts have in the state of New York have long and consistently held that the courts may not and should not interfere with the discretion of a district attorney.”

The court then granted the joint application by the D.A.’s office to dismiss the case and sealed the matter.

Cuomo appeared only briefly on camera during the hearing. He was seated to the left of Glavin and her co-counsel. He was wearing a navy suit, a white shirt, a blue tie, a black face mask, and what appeared to be a lapel pin bearing the Great Seal of the State of New York — similar to the ones he wore in office.

After the brief hearing, Glavin held a brief 2:00 p.m. online news conference.

“This case has now been shown to be what it always was, which was a blatant political act by an astonishingly unprofessional unprofessional rogue sheriff,” Glavin said. “No jury would have found Ms. Commisso credible. That is why this case was dismissed. As the governor has said, this simply did not happen. Today, reason and the rule of law prevailed. Not politics, rhetoric, or mob mentality.”

The charging document filed against Cuomo did not directly name the accuser. However, other documents released in connection with a sexual harassment probe by New York Attorney General Letitia James (D) indicated that Brittany Commisso claimed Cuomo groped her breast on Dec. 7, 2020. Commisso has since publicly discussed the accusations in a joint television and newspaper interview with CBS News and the Albany Times-Union.

Cuomo spokesperson Rich Azzopardi issued a lengthy statement Friday afternoon which slammed the James investigation.

“We have said from the beginning that this entire situation was a political manipulation and would be disproven when a non-corrupted legal review was conducted,” the statement said in part.  “Three district attorneys have now reviewed James’ report and evidence and have proven that what we said all along was correct — the law was not broken and not a single case has been brought.”

It continued, again in part:

The James report was not a legal review, but a sham to generate a press frenzy and political firestorm to clear the way for her own run for higher office. James’ position that ‘we believe all women’ is not a legal determination made by a professional Attorney General’s office — particularly when there is an abundance of exculpatory evidence and suspect motivations. Tellingly, James did not even apply the actual legal statutory definition of sexual harassment to the evidence which applies only to conduct between an employer and employee and excludes any behavior that to a rational person is “a trivial inconvenience or petty slight.”

Now three district attorneys have discredited James and her office’s conclusions. The Nassau and Westchester District Attorneys found that even if the allegations were credible they did not violate the law. Kissing someone on the cheek, patting someone’s stomach as you walk by, taking a photograph with an employee or a wedding guest is not illegal — criminally or civilly. Plaintiff lawyers overplayed their hand, and we will not pay one penny in attempts at civil extortion.

A fourth district attorney in Manhattan found that the administration’s handling of nursing homes complied with the law disputing hysteria and false claims of James and members of the legislature. Facts matter – even in politics and even in Albany.

For the last several weeks, we have remained silent while the process played itself out — do not confuse our respect for the justice system with acquiescence.

Read the original charging document below:

Read the DA’s press release surrounding his decision to drop the matter below:

Read the full Azzopardi statement here:

[image via Spencer Platt/Getty Images]

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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.