Letter clouds case against Cuomo

Complaint naming ex-N.Y. governor flawed, prosecutor says

NEW YORK — The sexcrime case against former New York Gov. Andrew Cuomo was thrown into doubt Friday after the Albany County district attorney wrote a letter to the court in which he characterized a criminal complaint as “potentially defective” because it did not include a sworn statement by the victim that would allow a prosecution to proceed.

In a letter to an Albany judge, District Attorney David Soares took issue with the Albany County sheriff for “unilaterally and inexplicably” filing the complaint last week without the knowledge of Soares, whose own investigation was still active.

Soares noted several potential problems with the sheriff’s filing, saying the failure to include a sworn statement from the alleged victim, Brittany Commisso, hindered his office’s ability to “proceed with a prosecution on these papers.”

Portions of Commisso’s testimony were also excluded, and Soares asserted that one part of the complaint misstated the relevant law.

Soares described portions of Commisso’s testimony that were not included in the complaint as “exculpatory,” meaning that the evidence could be favorable to Cuomo. Experts cautioned that could mean something as narrow as a statement being inconsistent.

Soares, a Democrat, asked the judge, Holly Trexler of Albany City Court, to delay Cuomo’s arraignment, which had been scheduled for Nov. 17, for 60 days “to reduce the risk of a procedural dismissal of this case” and to give the district attorney “time to continue with our independent and unbiased review of the facts in this case.”

On Friday, Trexler approved Soares’ request and postponed Cuomo’s arraignment until Jan. 7.

Soares’ letter underscored how the surprise decision last week by the sheriff, Craig Apple, also a Democrat, to charge Cuomo without coordinating with the DA could ultimately threaten the case against Cuomo. Such coordination is typical in long-term, high-profile law enforcement investigations.

Commisso, a former executive assistant to Cuomo, told investigators that he reached under her blouse late last year and groped her breast while they were alone in the Executive Mansion in Albany. Cuomo has denied touching Commisso inappropriately, and his lawyer has repeatedly cast doubt on her version of events.

In the complaint filed by Apple, Cuomo was charged with forcible touching, groping Commisso “for the purposes of degrading and gratifying his sexual desires.”

Yet, Apple’s abrupt decision to charge Cuomo with a sex crime caught Commisso, Cuomo and even Soares off guard. Soares had not indicated whether his office intended to prosecute the case.

Apple, under immense pressure, defended his office’s decision to move ahead last week by insisting that his investigators had conducted their own inquiry and that it was not necessary for his office to coordinate with the DA on a misdemeanor charge.

Experts, however, said it was highly unusual for a sheriff’s office or a police department to pursue a charge without consulting with the prosecutor who would be responsible for prosecuting the case.

Apple’s handling of the complaint raised concerns that it had been botched and led Cuomo and his allies to accuse the sheriff of being driven by political motivations.

In his letter to the judge, Soares said the sheriff’s complaint relied mostly on a portion of the testimony Commisso gave to investigators from the state attorney general’s office this year as they scrutinized sexual harassment claims against Cuomo.

Soares wrote that it was “even more troubling” that the sheriff’s filings “excluded other portions of her testimony where she described the very same acts described in the complaint.”

The report that resulted from the investigation overseen by Attorney General Letitia James concluded that Cuomo had sexually harassed multiple women, including Commisso, and ultimately led to his resignation in August.

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