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Albany judge dismisses criminal complaint against Cuomo

Former New York State Governor Andrew Cuomo

Former New York State Governor Andrew Cuomo  Credit: zz/NDZ/STAR MAX/IPx/zz/NDZ/STAR MAX/IPx

ALBANY — A judge Friday formally dismissed the only criminal complaint filed against former Gov. Andrew M. Cuomo in connection to the sexual harassment scandal that drove his resignation in August.

The action by Albany City Court Judge Holly Trexler was a formality to close a misdemeanor complaint against Cuomo after Albany County District Attorney David Soares said he wouldn’t pursue it.

The proceeding, conducted via virtual videoconference, was concluded in about eight minutes.

Cuomo, wearing a mask, didn't speak but appeared briefly on-screen with his attorney as lawyers took formal steps to end the matter.

"We reviewed all the available evidence in this case and concluded we cannot successfully secure a conviction," Jennifer McCanney, an assistant district attorney, told the judge.

"The courts may not and should not interfere with the discretion of a district attorney. As such, the court grants the application," Trexler replied. "The complaint is hereby dismissed."

Trexler said she’d issue an order sealing the matter.

Cuomo had been charged with the misdemeanor of forcible touching for allegedly grabbing the breast of a former staffer while they worked in 2020 in the governor’s mansion, just blocks from the State Capitol. The criminal complaint was filed by Albany County Sheriff Craig D. Apple after interviewing the staffer, Brittany Commisso. Cuomo has denied the allegation.

It was the lone criminal complaint filed related to an August report by Attorney General Letitia James that concluded Cuomo sexually harassed multiple women. The then-governor denied the allegations but resigned while facing a fast-moving impeachment investigation focusing on the harassment allegations and other matters. Cuomo said he stepped down because the political climate had become "too reactionary" and he wouldn't get a fair hearing.

The ex-governor could still face civil lawsuits.

In a short online appearance minutes after the dismissal Friday, Cuomo attorney Rita Glavin blasted the sheriff and Commisso.

"This was a blatant political act by an astonishingly unprofessional and rogue sheriff. No jury would have found Miss Commisso credible and that is why this was dismissed," Glavin said. "As the governor has said, this simply did not happen. Today, reason and the rule of law prevailed. Not politics, rhetoric or mob mentality."

Soares, in a radio interview about three hours before the court proceeding, defended his decision. He said he found Commisso credible but said that’s not the test for proving allegations in court.

"Your witnesses can be credible. You can find your witnesses to be honest people," Soares said on WAMC, an Albany-based public radio station, adding he was speaking in general terms.

"But you still have what’s called a jury instruction and that jury instruction defines the law and defines what elements a prosecutor has to prove beyond a reasonable doubt," Soares said. "It’s not by probable cause: ‘We can probably establish that.’ No, no we have to prove those elements beyond a reasonable doubt and if we can’t do that, we are ethically bound not to proceed."

Asked whether the detailed account Commisso gave the attorney general’s investigator wasn’t sufficient, Soares wouldn’t go into specifics about the case or what led him to his decision.

But he noted the attorney general’s probe — which focused on multiple women, not just Commisso — was conducted under civil, not criminal law.

"Everything that has been put out there for public consumption, including the attorney general’s report, were the results of investigations that were conducted as civil investigations," Soares said. "You don’t have anyone who’s been subject either to cross examination, and you do not have anyone, um, or those individuals conducting those obligations to turn over information, that’s known as Brady material, that is favorable to the opposition. So there is a tremendous difference. There is no burden (of proof) on the civil side. There is a burden in the criminal justice side."

Commisso's attorney told news outlets Tuesday she had no control over the filing or prosecution of the charges and indicated she would file a civil complaint against the ex-governor.

Attorney Brian Premo said, "The only thing she has any power over is her resolution to continue to speak the truth and seek justice in an appropriate civil action, which she will do in due course."

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