A city court judge in Albany has dismissed a charge of forcibly touching a former staffer against former New York Gov. Andrew Cuomo after the Albany County district attorney declined to prosecute, citing a lack of evidence to meet the burden of proof at a trial.
Cuomo, who resigned in August after a report by State Attorney General Tish James found he sexually harassed 11 women, was seen in the virtual court proceeding briefly sitting beside his lawyers, but he did not speak.
Judge Holly Trexler, saying Albany County District Attorney David Soares has “unfettered discretion” on whether to proceed with a case, said she can’t interfere with his decision and ordered the case dismissed and the records sealed.
Cuomo attorney Rita Glavin said the incident that her client is accused of never happened.
“Today, reason and the rule of law prevailed,” Glavin said. “Not politics, rhetoric, or a mob mentality.”
Former Cuomo staffer Brittany Commisso brought the criminal complaint, saying the former governor inappropriately groped her under her shirt after she was summoned to his office in the executive mansion in December 2020 to help him fix his phone.
Albany County Sheriff Craig Apple filed the initial criminal complaint, praising Commisso for her courage in coming forward. But Soares, saying he was unaware the complaint had been filed, asked for more time to review the case. On Jan. 4, he announced he was dropping it.
Soares — speaking Friday on Albany public radio station WAMC, where he is a regular guest on a roundtable panel — said he couldn’t comment on the specifics of the case. But he said while he found Commisso’s account “credible,” there is a different level of burden of proof required for a criminal case.
He said his office’s special victims unit conducted an impartial review to reach their conclusion.
“As a prosecutor, you have to ask yourself, can we establish every element of this offense beyond a reasonable doubt? And if you can, you proceed,” Soares said. “And if you cannot, then you do not.”
He said the attorney general’s investigation was a civil proceeding, not a criminal one, and more evidence would be needed to prosecute.
Elias Fara – a member of the Sexual Harassment Working Group, which is made up of current and former New York state legislative staffers who say they were harassed by elected officials – said he’s disappointed with the DA’s decision.
“I find it absolutely ridiculous,” Fara said. “It’s absurd that a prosecutor would say, ‘I find this victim credible, I find her statements credible, but I just don’t have the ability to prosecute.’”
Fara worked for former state Assemblywoman Angela Wozniak, who he said sexually harassed him and then retaliated against him when he spoke up. Wozniak declined to seek reelection. The case is still in civil court.
Fara, now a criminal defense attorney in Buffalo, is also a former prosecutor with the St. Lawrence County District Attorney’s office. He said it should be up to a jury, not the prosecutor, to decide if there’s enough evidence to convict someone of a crime.
He believes Soares’ decision was politically motivated.
“I’ve seen district attorneys across this state bring charges against people that may not be as strong as other cases, but they still bring them,” he said. “The only thing I can see in this case that seems to be different is that this is the former governor.
“Maybe somebody is afraid of this fight.”
Fara said the most unfortunate aspect of dropping the case, though, is that it makes it harder for victims to come forward.
“That is the real shame to victims across this state and across this country,” he said. “Because there’s not going to be any justice for them.”
Soares said he’s aware of the criticism but is not letting the “passions” of a high-profile case influence his decisions.
“You should fear a prosecutor who is basing their decisions not on the rule of law, but on satisfying those passions,” Soares said.
In a statement, Cuomo spokesman Rich Azzopardi castigated James for issuing her report in the first place, saying it was “a sham to generate a press frenzy and political firestorm to clear the way for her own run for higher office.”
James briefly entered the race for governor, but is now running for re-election.
Azzopardi said the former governor has been quiet these past few weeks out of respect for the legal process, but that no one should “confuse our respect for the justice system with acquiescence.”
“Stay tuned,” he said.