The sex crimes case against former Gov. Andrew M. Cuomo was called into question on Friday after the district attorney for Albany County, New York, issued an extraordinary public denunciation from the local sheriff , saying the criminal complaint the sheriff filed last week was “potentially flawed.”
In a letter to a judge in Albany, New York on Thursday, District Attorney David Soares challenged Albany County Sheriff Craig Apple for “unilaterally and inexplicably” filing the lawsuit without knowing it. of Mr. Soares, whose own investigation was still ongoing.
The letter highlighted how the sheriff’s surprise decision to charge the former governor without coordinating with Mr. Soares could ultimately threaten the case against Mr. Cuomo. Such coordination is typical of long-term, high-profile police investigations.
In his letter, Mr. Soares noted several possible issues with the sheriff’s filing. He said it was “potentially flawed” because it did not include an affidavit from the alleged victim, Brittany Commisso, which would allow prosecution to continue.
Mr Soares also wrote that it was “even more disturbing” than the complaint excluded portions of testimony Ms Commisso had previously provided to investigators at the state attorney general’s office. He also claimed that a section of the complaint distorted the relevant law.
Mr. Soares described parts of Ms. Commisso’s testimony that were not included in the complaint as “exculpatory”, meaning that they might be favorable to Mr. Cuomo. Mr Soares did not disclose what that evidence was, and experts warned that it could be something as narrow as an inconsistent statement.
The Apple Sheriff did not immediately respond to calls or a text requesting comment.
Mr Soares, a Democrat, has asked Albany City Court Judge Holly Trexler to delay the arraignment of Mr Cuomo, which was scheduled for November 17. “To reduce the risk of procedural dismissal of this case” and to give the district attorney “time to continue our independent and impartial examination of the facts in this case”.
Judge Trexler approved Mr. Soares’ request on Friday and postponed the arraignment until January 7.
Ms Commisso, Mr Cuomo’s former executive assistant, told attorney general investigators he slipped under her blouse late last year and groped her chest while they were alone in the executive mansion from Albany.
Mr. Cuomo has denied touching Ms. Commisso inappropriately and her lawyer, Rita Glavin, has repeatedly sought to cast doubt on her account. Among other things, Ms Glavin focused on the apparent inconsistencies regarding the date of the alleged incident.
In the complaint filed by Sheriff Apple, Mr. Cuomo was charged with forcible touching. Under New York law, a person is guilty of forcible touching when the touching takes place for the purpose of degrading and mistreating a victim, or for the purpose of satisfying sexual desire.
The sheriff’s abrupt decision to charge Mr. Cuomo with a sex crime caught Ms. Commisso, Mr. Cuomo and even Mr. Soares off guard. Mr. Soares had not previously indicated whether his office intended to pursue the case.
Sheriff Apple, under immense pressure, defended his office’s decision to go ahead last week by insisting that his investigators had conducted their own investigation and that it was not necessary for his office to move forward. office coordinates with the district attorney on a misdemeanor charge.
Experts, however, said it was highly unusual for a sheriff’s office or police department to pursue a charge without consulting the prosecutor who would be responsible for pursuing the case.
In his letter, Mr. Soares said the sheriff’s complaint was based primarily on some of the testimony Ms. Commisso gave to attorney general investigators as they reviewed the sexual harassment allegations against Mr. Cuomo.
Mr. Soares may have called the complaint “potentially flawed” because under New York law any complaint must be supported by first-hand testimony or it is considered insufficient. The sheriff’s complaint did not include any part of Ms. Commisso’s testimony that indicated that she was speaking to Attorney General investigators under oath, nor did it include a separate affidavit.
E. Stewart Jones Jr., a criminal defense attorney in Troy, NY, said in an interview that the lack of communication between Mr. Soares and Sheriff Apple would most likely help Mr. Cuomo, because “confusion invariably plays a role in benefit of the defense in a criminal case.
“What he needed to do was have a conversation with the district attorney’s office,” Mr. Jones said of the sheriff. “A sheriff, police officer or police chief should have a conversation with the prosecution – the lawyers, who know the law – and are ultimately responsible for deciding whether or not to prosecute. “
Mr Soares’ letter was included in a court file related to the case which was made public on Friday. The file also included various documents intended to establish that Mr. Cuomo was at the Executive Mansion on December 7, when the sheriff’s complaint says he groped Ms. Commisso.
The file also included documents relating to the governor’s schedule; flight logs, phone records and mansion map scan data; and emails between Mr. Cuomo’s staff.
The date of the alleged incident has become a source of intense dispute. In some cases, the attorney general’s report says this happened around November 2020; in one case, the report explicitly cited November 16 as the date.
After the report was released, Ms Commisso and the sheriff’s office focused on December 7 as the most likely date of the incident.
Ms Glavin, Mr Cuomo’s attorney, attempted to use the conflicting dates to undermine Ms Commisso’s account. As part of that effort, Ms Glavin released documents intended to prove Mr Cuomo was surrounded by staff and too busy on November 16 to have been alone with Ms Commisso.
The court record released on Friday also included eight pages of testimony Ms Commisso gave on May 17 to outside lawyers hired by Attorney General Letitia James.
In the testimony included in the complaint, Ms Commisso describes in detail the alleged incident, down to the coat she was wearing when, she says, Mr Cuomo rose from his desk as she entered his office. .
“I remember him coming over and it was instantly, like I could tell when he came back to that, OK, it wasn’t going to be just a casual hug, he really pulled me up and I was. remember her hand just sliding up my blouse, ”she told investigators.
“And I remember looking down and I remember seeing her hand which is, I would say a big hand and over my bra and I remember looking down and being like, excuse my language , damn it, it’s like going from zero to 60 inches .2 seconds, “she continued.” It was so fast. “
In her testimony, Ms Commisso said the incident took place in November 2020, adding that “I don’t remember the exact date, but I guess it was November 16, around this time” .
She told investigators that she determined that the incident happened around this time because she recalled being asked by one of Mr. Cuomo’s top associates to take a photo of the driver’s license. governor at the time. The photo, according to the attorney general’s report, was taken on November 16.
But Ms. Commisso noted in her testimony that “I don’t remember exactly what date” Mr. Cuomo groped her.
The attorney general’s report concluded that Mr. Cuomo sexually harassed several women, including Ms. Commisso and other government employees, and ultimately led to Mr. Cuomo’s resignation in August.
Sheriff Apple’s filing of the complaint against Mr. Cuomo came a day before Ms. James announced that she was running for governor. The timing helped amplify accusations by Mr. Cuomo’s allies that his report was politically motivated.
Ms Glavin and Mr Cuomo’s longtime spokesperson Richard Azzopardi have suggested in recent days, without evidence, that Ms James’ complaint and announcement may have been coordinated. Ms Glavin and Mr Azzopardi declined to comment on Friday.
Sheriff Apple is a Democrat, as is Ms. James. On Thursday, she argued forcefully that the timing of her announcement was “purely a coincidence,” adding that Mr. Cuomo’s attacks were “more of the same” and that “he needs to move on.”
Asked about Mr Soares’ letter on Friday, Ms James declined to comment. Brian Premo, Ms Commisso’s lawyer, also declined to comment.
Cecilia Walsh, spokesperson for Mr. Soares, confirmed that Mr. Cuomo’s arraignment has been delayed. “Our office will not comment further on this matter,” she said.