New York’s attorney general said she believed Brittany Commisso. The sheriff who filed a criminal complaint accusing former Gov. Andrew Cuomo of groping Commisso in the governor’s mansion called it a “very solid case.” The district attorney called her credible — but said he wouldn’t pursue the case because he couldn’t prove it.
To some legal experts and women’s advocates, Albany County District Attorney David Soares’ decision this week points to the difficulties of prosecuting sex crime allegations. But to others, it’s confounding.
“If you have a credible witness who comes to you, you believe her, she’s cooperative, is that not enough?” said Matthew Galluzzo, a New York City criminal defense lawyer and sex crimes prosecutor. “This is tremendous prosecutorial cowardice.”
Commisso was left wondering, too.
“When will our voices uniformly be accepted? Where do we go to have our rights vindicated?” she asked in a statement to the Times Union of Albany, lamenting that the case “highlights the reason victims are afraid to come forward, especially against people in power.”
A message was sent Wednesday to Soares’ office about his decision-making.
The district attorney faced a decision about whether to go forward with a misdemeanor forcible touching case against Cuomo. The sheriff initiated it in October without the prosecutor’s knowledge, an unusual move.
The Democratic ex-governor — who resigned in August amid a roster of sexual misconduct claims that he denied — was three days away from his scheduled arraignment in the case when Soares announced his decision. It came on the heels of similar moves by two suburban New York prosecutors investigating Cuomo’s conduct toward other women.
Cuomo has had no comment so far on Soares' decision.
Commisso said Cuomo reached up her blouse and grabbed her breast in late 2020 while they were alone in his Executive Mansion office, where she’d been summoned to help with his cellphone. He insisted he did no such thing, saying “it would be an act of insanity.”
The Associated Press doesn’t identify people who say they have been sexually assaulted unless they decide to tell their stories publicly, as Commisso has done in interviews.
Soares, a Democrat, expressed qualms about the case early on, calling Democratic Sheriff Craig Apple’s court complaint “potentially defective” and successfully asking a court to delay Cuomo’s arraignment, originally set for November. Apple said he was confident in the case’s strength.
Then Soares asked the court Tuesday to dismiss the case altogether.
He said prosecutors found Commisso “cooperative and credible” and the allegation “deeply troubling” but “concluded that we cannot meet our burden at trial.” Soares also cited “technical and procedural hurdles” stemming from multiple simultaneous investigations into Cuomo’s conduct and said that elements of New York law ”make this case impossible to prove,” without elaborating.
“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 statement Tuesday.
Prosecutors would have needed to prove that Cuomo touched the aide in a sexual or intimate area, without her consent, to degrade her or to gratify his sexual desire.
Bennett Gershman, a Pace University law professor and former state prosecutor, said he saw the case as “not a slam-dunk.” District attorneys are obligated to focus on how the case will play out before a jury, including a defense attorney’s cross-examination of the accuser, he said.
“It’s very, very difficult to go ahead with a prosecution where you’re really not sure you’ve got the goods,” he said.
But some other attorneys took aim at the logic of saying an accuser is credible but there’s not enough proof to win at trial.
“Ridiculous,” said Bruce Barket, a veteran defense lawyer on Long Island.
“I get that these cases are difficult and complicated, but this one was crisp and clear if you believe the complainant, which everyone who interviewed her said they did,” Barket said.
Carrie Goldberg, a New York City attorney who represents sexual assault and abuse victims, noted that an accuser’s sworn testimony is legally a form of proof.
“Prosecutors frequently underestimate the value of a victim’s testimony,” said Goldberg, who’s not representing any of Cuomo’s accusers.
Even if the Albany prosecutors thought they could lose the high-profile case, she and some other attorneys argue it was legally sound and should have gone forward.
“There’s merit in trying, even in losing. Because otherwise, you’re sending a very clear message to the public that if you’re a woman and you’re alone with a man in a room and he sexually assaults you, and there’s no one in the room, and he denies it, he’s going to get away with it,” Galluzzo said.
Andrew Stengel, another former New York City prosecutor-turned-defense lawyer, said the decision not to prosecute the former governor “reinforces the idea that there are two systems of justice – one for former elected officials and another for the general public.”
Regardless of the outcome of Commisso’s case, Sonia Ossorio, the president of the New York chapter of the National Organization for Women, urged sex crime victims not to shy from coming forward if they want to.
So did Commisso.
“To every victim out there silently suffering from sexual harassment at the hands of a powerful government official, wondering what will happen if you tell the truth,” she said, “please don’t let what has happened to me deter you from speaking up.”