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‘We Cannot Meet Our Burden at Trial’: Prosecutor Shuts Down Misdemeanor Sex Crime Case Against Former N.Y. Gov. Andrew Cuomo

Andrew Cuomo Farewell address

Gov. Andrew Cuomo is seen delivering a farewell address on Aug. 23, 2021.

The district attorney of Albany County, N.Y., on Tuesday announced that his office was dropping a misdemeanor criminal case against former Gov. Andrew Cuomo (D). The case was launched by the county sheriff more than two months ago.

Calling his own office’s investigation “thorough and independent,” District Attorney David Soares (D) wrote that he did not believe his staff would be able to prove that Cuomo was guilty of a crime.

“While many have an opinion regarding the allegations against the former Governor, the Albany County DA’s Office is the only one who has a burden to prove the elements of a crime beyond a reasonable doubt,” Soares said in a press release.  “While we found the complainant in this case cooperative and credible, after review of all the available evidence we have concluded that we cannot meet our burden at trial. As such we have notified the Court that we are declining to prosecute this matter and requesting the charges filed by the Albany County Sheriff be dismissed.”

“I, like most New Yorkers, remain deeply troubled by allegations like the ones at issue here,” Soares continued.  “Such conduct has no place in government or in any workplace. Although avenues for criminal prosecution in these cases are sometimes limited, I encourage victims of workplace harassment and abuse to continue to come forward and bring these issues to light so that these important discussions can continue.”

The DA’s office further noted that the “decision to discontinue criminal prosecution is unrelated to any possible civil liability, which is beyond the scope of a District Attorney’s jurisdiction.”

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 now-scuttled charging document states.

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.

The charging document did not directly name Cuomo’s accuser. However, other documents released in connection with a wide-ranging sexual harassment probe into the governor’s office 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.

The T-U reported that Commisso “wanted to pursue the case but was informed during a meeting with prosecutors on Monday afternoon that they were planning to invoke their discretion not to move forward, in part, because of the manner in which the criminal complaint had been filed, according to a person briefed on the matter.”

As Law&Crime previously explained, the filing of the charging document by the sheriff’s office directly (and not by the prosecutor’s office) left the instrument open to an additional attack by Cuomo’s attorneys.

Cuomo was scheduled to appear in court for the first time in connection with the charge on Friday.

Commisso’s attorney, Brian D. Premo, told the T-U that his client would almost certainly file a civil action “in due course.”

The newspaper elsewhere reported that the DA’s office and Cuomo’s attorneys “met privately on Tuesday morning” with Albany City Court Judge Holly Trexler.  Court officials refused to allow reporters from the newspaper to “access” the conference.

Two other district attorneys, one in Westchester County and the other in Nassau County, recently and independently said Cuomo would not be charged for alleged sexual misconduct in their respective jurisdictions. On Monday, Cuomo’s lawyer also said that the Manhattan District Attorney’s Office, now headed by Alvin Bragg (D), will not be pursuing a criminal case against the former governor in connection with an investigation into nursing home COVID-19 deaths in the Empire State.

The original charging document is below:

Editor’s note: this report, which began as a developing story, has been updated significantly since its initial publication.

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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.