DA’s decision in Cuomo case ‘the reason victims are afraid to come forward’

Investigations by the Albany County sheriff’s office, the state attorney general’s office and the state Assembly’s Judiciary Committee all concluded that Commisso’s allegations were credible and that electronic records and other evidence confirmed her visit to the governor’s second-floor office. But Soares said his office has “a burden to prove the elements of a crime beyond a reasonable doubt.”

“While we found the complainant in this case cooperative and credible, after review of all the available evidence we have concluded that we cannot meet our burden at trial,” Soares said in a statement Tuesday morning. “As such we have notified the court that we are declining to prosecute this matter and requesting the charges filed by the Albany County sheriff be dismissed.”

Commisso, 33, met with representatives of the district attorney’s office for several hours on Monday afternoon, and told them she wanted to go forward with the case. During that meeting, they outlined their concerns about some of the evidence, she said, including whether jurors might interpret her actions during the alleged encounter as acquiescing to Cuomo’s advances.

Commisso, who went public with her allegations only after Cuomo accused her of lying about the encounter, has remained resolute in her assertion that he had groomed her for months with sexually charged remarks and an earlier incident in which he allegedly put his hand on her butt as they posed for a photo. Sheriff’s investigators said Commisso told them she was willing to take a polygraph lie-detector examination if they requested it — something law enforcement agencies rarely will ask alleged victims to do.  

“My disappointing experience of re-victimization with the failure to prosecute a serial sexual abuser, no matter what degree the crime committed, yet again sadly highlights the reason victims are afraid to come forward, especially against people in power,” Commisso said in a statement to the Times Union. “When will our voices uniformly be accepted? Where do we go to have our rights vindicated? Unfortunately, this is just another example of where our criminal justice system needs to do better.”

“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, please don’t let what has happened to me deter you from speaking up,” she said.

One of the prosecutors’ concerns apparently stemmed from Commisso’s statement that she had nervously told Cuomo, “You’re going to get us in trouble,” when she said he came out from behind his desk and hugged her in a sexually aggressive manner during the mansion encounter. She said the governor slammed the door to his office at that point, and said, “I don’t care.”

Commisso said the governor then hugged her again in a sexually aggressive manner and reached his hand up her blouse and cupped her breast.

Cuomo has denied that he hugged or groped her that day. He testified before the attorney general’s investigators that Commisso had been flirtatious with him, and he characterized his behavior toward her as “warm.” In other instances involving female staff members, the 64-year-old Cuomo has acknowledged hugging female aides and kissing them on the cheek, although some have alleged he kissed them on the lips — and several have said the kisses made them uncomfortable or were unwelcome.

But with Commisso’s allegation, it’s unclear why Albany County prosecutors believe her actions or words could be interpreted by jurors to be accepting of his alleged sexual advances that day — an incident that he has repeatedly denied occurred in any context, consensual or otherwise.

“She was very affectionate. I would say more she was the initiator of the hugs,” Cuomo had told investigators with the attorney general’s office. “She said that she was Italian and Italians are very affectionate people. But she was a hugger.”

Commisso told investigators that the governor’s alleged advances were not consensual and that her “You’re going to get us in trouble” response was, in part, a result of being caught off-guard and her being afraid for her job security.

Soares’ announcement came about 15 hours after the Times Union first reported that his office would seek to discontinue the case. Albany City Court Judge Holly Trexler, who is presiding over the matter, met privately on Tuesday morning with attorneys for Cuomo and the district attorney’s office. It’s unclear what resulted from that meeting; court officials had declined to allow the Times Union access to the conference.

Cuomo had been scheduled to make his first appearance in Albany City Court on Friday to face the misdemeanor charge. As of Tuesday afternoon, that appearance remained on the court docket. 

Soares’ decision comes after two other district attorneys announced they would not pursue criminal charges against Cuomo for alleged inappropriate conduct with women, although they found the allegations credible. 

Soares, contending that he remains “deeply troubled” by the allegations, said in his statement that the “avenues for criminal prosecution in these cases are sometimes limited, (but) I encourage victims of workplace harassment and abuse to continue to come forward and bring these issues to light so that these important discussions can continue.”

Commisso’s attorney Brian D. Premo said that his client had no control over either the filing of the complaint or its prosecution. “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,” he said.

A spokesman for Cuomo on Tuesday said they would not be making a comment until the case is adjudicated. It’s unclear whether the former governor will still need to be arraigned on Friday before the judge can dismiss the case. 

Cuomo, his attorney and his former aides have pointed to what they say are inconsistencies in Commisso’s statements in her interviews with the Times Union, CBS and the attorney general’s office, including whether she could recall what she was wearing the day of the alleged incident. They also have questioned why Commisso could not initially recall the date of the incident and had told investigators it may have happened around Nov. 16, 2020, which was a day she could confirm being at the mansion.

Commisso told the Times Union she believed it may have occurred in late November. Investigators for the sheriff’s department and Assembly Judiciary Committee used electronic swipe-card records and text messages between members of the governor’s security detail to confirm she had visited the mansion on Dec. 7 — and would have been alone in Cuomo’s second-floor office with him. He does not dispute that she was there that afternoon but denies groping her.