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Legal professionals on potential Cuomo charges as Westchester ends investigation

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ALBANY, N.Y. (NEWS10) — Although she says the witnesses were credible and the evidence laid plain, Westchester County District Attorney Miriam Rocah says there’s still not enough to charge Andrew Cuomo with a crime. Tuesday, DA Rocah released a statement signaling an end to her criminal investigation into Cuomo’s alleged forcible touching of a state trooper and a Westchester county school staffer.

“In both instances, my office has determined that, although the allegations and witnesses were credible, and the conduct concerning, we cannot pursue criminal charges due to the statutory requirements of the criminal laws of New York,” Rocah wrote.

“The cheek isn’t so much considered an ‘intimate’ or ‘sexual’ part. There’s no case law that ever said that it was,” said Patrick Kilker, a partner at Tully Rinckey Attorneys and Counselors at Law. Another major complication is proving intent. Kilker says New York’s forcible touching law also requires proof beyond a reasonable doubt that the defendant touched the victim with motivations of fulfilling sexual gratification or to demean the victim in some way.

“You have to prove what’s in someone’s mind. If the person doesn’t take the stand, you can’t cross-examine them about what they were thinking. If there isn’t any independent evidence that would support acting for the motivations outlined in the statute, that proving intent is always difficult,” Kilker explained to NEWS10’s Mikhaela Singleton.

In an August press announcement, Cuomo used a photo of himself kissing complainant Susan Iannucci to claim he “[did] it with everyone.” At the time, the ex-governor said, “It is meant to convey warmth. Nothing more. Indeed, there are hundreds if not thousands of photos of me using the exact same gesture. I do it with everyone.”

“I am once again put in a position of humiliation and embarrassment,” Iannucci said a few days later in an August 10 conference with her attorney, Gloria Allred. “I do not condone his actions towards any of the women who have come forward, and I do not appreciate being made to look as if I do.”

Allred and Iannucci released a statement Tuesday thanking the Long Island district attorney for her consideration, but also stating that the outcome underscores the need to change New York law:

“The Westchester County District Attorney’s office conducted an investigation into allegations reported by two women in Westchester County against former Governor Andrew Cuomo. Pursuant to that investigation and at their request, my client, Susan Iannucci, who was one of the victims of former
Governor Cuomo, agreed to speak with investigators.

She agreed to disclose to them what happened with Governor Cuomo and Susan, even though Susan recognized that what former Governor Cuomo did would be beyond the statute of limitations in New York and therefore, no criminal charges would be filed. The investigators and the prosecutor who spoke with Susan were very sensitive to her and to her allegations.

We are gratified that the District Attorney’s office in their press statement today indicated that they found her allegation and Susan to be credible. They also stated that “We cannot pursue criminal charges due to the statutory requirements of the criminal laws of New York.” They explained to us what we already knew and appreciated, which is that the allegations are beyond the statute of limitations. In other words, it is too late to pursue any criminal charges, even if law enforcement felt there was a basis to pursue them.

This conclusion once again demonstrates the need to change the law in New York and pass the Adult Survivors Act to provide a remedy and an avenue to pursue justice for victims of adult sexual abuse. We thank the District Attorney’s office for their serious consideration of this matter, and we will continue to pursue justice by fighting for the passage in New York of the Adult Survivors Act.”

With the Westchester cases not meeting the burden of proof, all eyes now turn to Albany County where Cuomo may face the same charge for allegedly touching a woman’s breast. “In the Albany case, it’s different,” DerOhannesian says. “Most people think that the Albany case is the strongest one and might be the one that could qualify for a criminal charge.”

Cuomo’s Albany County arraignment is set for January 7. The case faces its own hurdles due to the way it was filed. Early on, Albany County District Attorney David Soares indicated possible defects in what Kilker calls “facial deficiency.” He explained, “That means that the paperwork that’s filed is hearsay and not based on non-hearsay allegations, so there’s a different reason why that one may be dismissed.”

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