This is one of those “I told you so” situations that it really does pain me to report.
As our Brittany Bernstein reports, prosecutors in Albany have announced that former Governor Andrew Cuomo will not be prosecuted after all for misdemeanor sexual assault against Brittany Commisso, who used to work for him in the New York state executive chamber. District Attorney David Soares announced today that, although Commisso was a “cooperative and credible” complainant, his office would not be able to prove the charge beyond a reasonable doubt. He thus dismissed the complaint that the showboat sheriff, Craig Apple, had filed in October without alerting prosecutors.
Soares had indicated that there were significant legal problems with what Apple had done, and has now notified the court that he is declining prosecution.
Cuomo was accused of groping Commisso — allegedly accosting her in a room at the governor’s mansion while others were present on the premises (though not in the room) and grabbing her breast under her shirt. While reprehensible, the conduct — assuming it happened — would not constitute a felony under New York assault law.
Commisso initially remained mum about the matter (and Cuomo’s lawyers later claimed that she could not reconstruct on what day it had allegedly happened). Reports about it first surfaced months later, when Cuomo’s numerous instances of unwanted touching and salacious commentary, targeting various women, had become a public scandal. Commisso confided in a friend, who also worked in the executive chamber and who reported it to superiors. Ultimately, Commisso went public, filed a formal complaint with Albany police, and cooperated in Attorney General Letitia James’s investigation. (See AG’s Report, pp. 16–32.) As Soares observed today, the fact that criminal charges will not be pursued does not prevent Commisso from filing a civil lawsuit against Cuomo — he stressed that the dismissal must not be construed as an implicit finding that the incident did not happen.
I detailed from the start that Sheriff Apple was undermining the case, and that his bungling would make it much harder to prosecute. First, he convened an utterly unnecessary press conference merely to announce that a formal complaint had been made to police. Having done no investigation at that point, Apple undermined Cuomo’s presumption of innocence by publicly referring to Commisso as the “victim,” and thus implying that police had concluded Cuomo was guilty. Pundits can get away with that, but the most junior investigator would know it is misconduct by police, who are duty bound to respect and protect the due-process rights of a suspect. Notably, sheriff is an elected position in Albany, so it is fair to assume that Apple, a Democrat, was prioritizing political theatrics over his law-enforcement responsibilities.
Apple then failed to consult with the prosecutor’s office or the complainant’s lawyer before filing a complaint with the court. Ludicrously, he claimed that he hadn’t had time to consult — though he’d been working with prosecutors for weeks. So why file such a charge in what appeared to be a weak criminal case without the prosecutor’s consent? Well, it just so happened that on the same day Apple published his charge, Attorney General Letitia James announced that she would be running to replace Cuomo as governor, and proceeded to rely heavily on Apple’s charge in arguing that her investigation of sexual-harassment allegations against the former governor had been vindicated. Though Apple was working off information gathered in James’s probe, the two insisted that they were not cooperating politically — perish the thought! (James has since abandoned her gubernatorial bid and plans to seek reelection as AG.)
Obviously, Soares realized that if he were audacious enough to bring a weak misdemeanor case against Cuomo, the defense was going to have a field day exploiting Apple’s hijinks. Cuomo would have used a likely acquittal to claim that all the harassment accusations against him were politically motivated falsehoods (in fact, he will now do that anyway, occasioned by the dismissal of a complaint that Apple should never have filed in the first place). The no-prosecution announcement in Albany comes a day after we learned that prosecutors in Manhattan have dropped a criminal investigation into Cuomo’s deception of the public and state lawmakers regarding the number of nursing-home deaths attributable to Covid-19 (see my post on that, here). The timing of the Albany announcement was probably driven by the fact that Cuomo was otherwise scheduled to appear in court on the misdemeanor sexual-assault charge this coming Friday.
Though Ms. Commisso understandably expressed disappointment regarding the decision to decline prosecution, no one would have been more ill-served than she if the case against Cuomo had cratered during trial. Things should not have played out this way, but the outcome was predictable.