The New York attorney general’s report on alleged sexual harassment by Gov. Andrew Cuomo was the result of a civil investigation, but it has since led to law enforcement officials opening criminal investigations with the possibility of Cuomo being arrested.
The big question is what – if anything – could the governor be charged with? On Sunday, Albany County Sheriff Craig Apple hinted at a possible result in the case involving Brittany Commisso, the executive assistant who brought the most serious allegations against the governor.
CUOMO EXECUTIVE ASSISTANT BRITTANY COMMISSO GOES PUBLIC, DESCRIBES ALLEGED MISCONDUCT IN INTERVIEW
“It would probably be a misdemeanor, possibly a couple,” Apple said during a news conference.
Criminal defense attorney and former Brooklyn prosecutor Julie Rendelman agreed with that assessment, based on Commisso’s allegation that in one instance Cuomo grabbed her butt while they took a selfie and on another occasion reached under her blouse and cupped her breast over her bra.
“Assuming a thorough investigation by the district attorney’s office supports Ms. Commisso’s allegations, Governor Cuomo is potentially looking at two misdemeanor charges, forcible touching and sexual abuse in the third degree,” Rendelman told Fox News.
According to the statutory language, forcible touching is when someone “forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the person’s sexual desire[.]”
Sexual abuse in the third degree is when someone “subjects another person to sexual contact without the latter’s consent.” Sexual contact is defined as “any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party … whether directly or through clothing.”
CUOMO SEXUAL HARASSMENT INVESTIGATION: READ THE FULL REPORT
As for possible punishments, forcible touching is a class A misdemeanor with a maximum penalty of one year in jail, and sexual abuse in the third degree is a class B misdemeanor that carries a maximum of 90 days.
Cuomo, through his lawyers at the law firm Arnold & Porter, criticized the attorney general investigation’s handling of Commisso’s allegations, specifically its supposed failure to mention the alleged date of when he was said to have groped her breast to any witnesses.
Brittany Commisso is one of 11 women referenced in a scathing report from New York State Attorney General Letitia James that alleged Cuomo sexually harassed multiple women and violated state and federal law. Cuomo has denied any wrongdoing. Until now, Commisso had remained anonymous, referred to only as “Executive Assistant #1” in the report.
(CBS This Morning/Getty Images)
“Although you apparently had been aware of that date for some time, it appears that you declined to provide that information to any of the Chamber’s witnesses or their counsel and, instead, waited until the Governor’s testimony on July 17 to ask about his activities on that date,” the attorneys said in a response to the investigators. Cuomo’s lawyers said this robbed witnesses of the opportunity to discuss that day and the possibility that the alleged incident could not have occurred then.
“That approach raises questions of thoroughness, as well as the extent to which you pursued evidence that might prove inconsistent with the complaints, despite your promise to ‘act judiciously and follow the facts wherever they lead,’” the letter said.
While that was not an emphatic denial, Cuomo has maintained that he never touched anyone inappropriately. Furthermore, as Rendelman notes, criminal cases require prosecutors to clear the high hurdle of proving a case beyond a reasonable doubt.
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“This standard is much higher than the civil arena,” Rendelman said. She predicted that Cuomo’s lawyers will seek to sow doubt by calling Commisso’s credibility into question.
“While it’s too soon to say what the possible defenses might be, Cuomo’s lawyers are going to make every effort to raise questions as to the complainant’s credibility and any potential ulterior motive for her coming forward.”
