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What Andrew Cuomo is facing in court Nov. 17 and beyond

October 29, 2021

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In a stunning development around the state capitol, former New York Governor Andrew Cuomo is facing a criminal charge. He’s accused of groping a staffer last year and is due in Albany City Court November 17.

The complaint alleges Cuomo forcibly groped Brittany Commisso under her blouse in December 2020 when she went to the governor’s mansion to help him fix a problem with his phone. It follows an investigation by the Albany County Sheriff. Cuomo denies sexually harassing anyone, but resigned under pressure in August. His attorney says the charge is politically motivated.

For analysis of what the Class A misdemeanor means, and what might happen next, we spoke with attorney Patrick Kilker of the firm Tully Rinckey.

Can you tell me what is meant by the term Class A misdemeanor in a case like this?

Yes, a Class A misdemeanor is defined as a misdemeanor in a local court as opposed to a felony. The misdemeanor can either be a Class A or Class B. A Class A misdemeanor carries with it a maximum penalty of one year in jail, or three years probation. But there are alternatives available such as diversion programs and the like.

Diversion programs typically involve probation. Probation has a number of conditions that are generally required when a person is placed on probation. Probation supervision isn’t just authorized by a court for no reason, there has to be some specific condition that has to be addressed. Behavioral condition, substance abuse issues, mental health issues, violence issues. Sexual allegations like these could be subject to certain counseling sessions. Although it’s not a mandatory registerable offense, it could be a condition of probation.

In confirming the charges on Thursday, a spokesperson for the Office of Court Administration said the charges are classified as a sex crime. Why is that classification notable?

It’s notable because it’s unwanted touching of a sexual or intimate part of another person. And it’s also notable because these statues exist to protect victims who allege that abuse or degrading behavior has been thrust upon them without their consent, either for the purpose of simply degrading them or for the actor’s sexual desire, but either event, the law is there to protect the victim.

We understand that the governor is due in court November 17. In Albany City Court, what would happen typically on that day?

Usually at the arraignment, the allegations are brought forward to the defendant. The former governor would be the defendant. They allegations can be waived, but they’re generally read to the defendant so he understands the charges against him. His rights will be read to him so that he understands all of his rights. And then a pre-trial conference is typically scheduled to allow the parties time for discovery to get the police reports and things of that nature prior to discussing the case, and then the parties need to discuss the case.

Does the governor have to appear in person himself? Or can he send an attorney on that November 17 date?

It’s mandatory that he appear himself.

Typically, would he speak during that hearing?

He doesn’t have to, no, except to enter a plea of not guilty. And his attorney can enter it, but generally it’s entered by the defendant.

And it’s almost certain that he would plead not guilty at that initial hearing.

I can’t imagine any reason he would not.

You mentioned that after that, there would be a period of time for discovery, assuming we’re heading toward a case. What kind of timeline are we looking at?

The people have 15 days, once he’s arraigned in court to provide the discovery material, the police reports and any supporting documentation videos and such, the supporting deposition of the victim, things of that nature. And that gets provided to defense counsel and the defense counsel will have an opportunity to look at that. And the people will also provide what’s called a certificate of compliance, which basically just outlines everything that they’ve given to the defense. And if anything is missing the defense and the prosecution talk about what that might be. And if they can’t come to a resolution, invoke the aid of the court. And generally the pretrial conference is an attempt to resolve the case without the necessity of a trial.

Is that likely to happen?

Usually, in a case like this, yes. The governor has no prior convictions for anything. It looks like the type of case that should resolve itself. But that remains to be seen.

Now, would you expect that he would have to plead guilty to something?

No, not necessarily. He could get what’s called an adjournment in contemplation of dismissal, which simply means that he’s not pleading guilty. He’s not pleading to anything. Basically, the charge gets put off for a period of time. And during that period of time, if there being no further arrests or anything of that nature, at the end of that one year period, the case is dismissed and sealed as though it never existed.

This isn’t happening in a vacuum, of course. There was a lengthy report by the attorney general, there’s a secondary report by an Assembly Judiciary committee that was pursuing impeachment earlier. Do any of those dynamics factor into what happens in Albany City Court with Andrew Cuomo?

The courts are separate from any other investigation. The court is there to determine fairness and equity in what should be done with a particular allegation. And we have to keep in mind that the former governor is presumed innocent at this point, and unless and until the people proven guilty beyond a reasonable doubt, that’s how he remains. So the courts are there to discern and figure out for themselves what the evidence is as it relates to the statute and the prohibitive conduct that all the court is looking at.

Now, we haven’t seen the evidence yet, although we have seen that there is evidence that an investigator in the Albany County Sheriff’s Department says she has gathered. How difficult is it to prove a case like this where one person is alleging another person touched them, that person denies it, and there were no other people there?

Credibility issues are the most difficult cases to resolve. And generally, they do end up in a trial. And the “he said she said,” that’s exactly what it is. Because when you get to court, neither one can resolve it, it goes in front of a jury and the jury will decide who they believe. And that can be risky for all participants.

If you were advising Andrew Cuomo right now, what would you be telling him to do, to say and that sort of thing?

I would be advising him to remain silent, to exercise his Fifth Amendment and to let his attorneys hash it out and figure this out. And then once there’s some clarity on the evidence, make certain decisions at that point, but at this juncture, simply remain silent.

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