Cuomo’s Cosby Defense? The New York Governor Could Ultimately Rely on the Comedian’s Defense

One of the threats faced by New York Gov. Andrew Cuomo is the pending criminal assault allegation in the Albany Police Department. If proven, the allegation of the former staff members of being groped by Cuomo could meet the standard for criminal assault.  It would however not be easy to prove and prosecutors would likely seek to bring in other women to show a pattern and practice by Cuomo. That is common in sexual harassment cases and hostile workplaces where you can get around statute of limitations when at least one case is recent or ongoing. However, as shown by the Bill Cosby case, such evidence can create reversible error in criminal cases. Indeed, if charged, Cuomo is likely to use a Cosby defense.

Other women have already publicly stated that they are willing to testify against Cuomo in any criminal case. Such evidence of “prior bad acts” however come with a heavy burden and increase the chances of reversal for any convictions.

Such allegations can come into criminal cases directly or indirectly.  The women could bring direct criminal complaint against Cuomo. However,  they may find it difficult to frame the many alleged incidents of Cuomo’s unwanted kissing and hugging into criminal charges.

The New York Penal Law focuses on “forcible touching” cases. Here is the provision:

 130.52 Forcible touching.

  A   person   is   guilty   of   forcible  touching  when  such  person intentionally, and for  no  legitimate  purpose,  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 actor’s sexual desire.

  For   the   purposes  of  this  section,  forcible  touching  includes squeezing, grabbing or pinching.

  Forcible touching is a class A misdemeanor.

Such a charge comes with the potential of a year sentence. As a first offender, Cuomo is unlikely to receive the maximum sentence but his position of authority would be a countervailing (aggravating) consideration.

Most of the allegations involve acts that would be difficult to prove as touching sexual or other intimate parts of these women for sexual gratification. I have been critical of Cuomo’s “I’m just an old gropy guy” defense. Nevertheless, it would be hard to frame most of these touchings and hugs into the forcible touching language.

However, one of the allegations does contain the key elements of intentionally touching sexual or other intimate parts of another. Cuomo is accused in the recent report of groping a woman who came to the Executive Mansion in Albany to fix his phone. The woman is described as a younger person who was called by Cuomo, 63, to his office to deal with his cellphone. She said Cuomo put his hands under her blouse and groped her, and that she told him to stop.

The difficulty in such cases is that there are often no witnesses so lawyers seek to show pattern and practice evidence. Such prior act evidence can add credibility to unwitnessed claims.

However, while common in sexual harassment or hostile workplace cases, it can cause serious problems in criminal cases as reflected in the Cosby case. The main reason for the overturning of Cosby’s conviction was the “bait-and-switch” pulled by the prosecutor in using statements from depositions after Cosby was assured that he would not be charged. Yet, justices would likely have reversed on the incorporation of allegations from an array of women at trial for uncharged criminal conduct. It simply did not have to reach that issue. Such evidence of prior bad acts are highly prejudicial and ripe for appeal.

Prior bad act evidence in federal courts is governed by Federal Rule of Evidence (FRE) 404(b) which is mirrored in many state provisions:

“Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. . . . This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

New York courts have identified exceptions to the prohibition of prior bad acts evidence to establish the nature of the relationship, to complete a narrative of conduct, and other purposes. People v. Alvino, 519 N.E.2d 808, 812 (N.Y. 1987). In People v Mateo, 2 NY3d 383, 439 (2004), the court required a two-part inquiry: (1) requiring the proponent of the evidence to establish relevancy of the evidence and (2) “the court must weigh the probative worth of the evidence against its potential for undue prejudice resulting to the defendant.”  Evidence of prior bad acts or uncharged crimes is inadmissible in New York to simply to show a propensity for crime or to assuage the defendant’s character

The Albany incident stands out in the report due to its specificity and inclusion of key elements. Other women say that Cuomo touched them on the outside of their clothing but would unlikely meet the standard for admissibility.

The most detailed was the trooper who said that on Sept. 23, 2019, Cuomo said “Hey, you” when he spotted her as part of his security team at Belmont, Long Island. She alleged that, as he was leaving, Cuomo walked by the trooper and ran the palm of his left hand across her stomach “opposite the direction that he was walking.” She added “The center of the Governor’s hand was on Trooper #1’s bellybutton, and he pushed his hand back to her right hip where she kept her gun.” stated that her bellybutton was in “the center of his palm.”

Cuomo’s counsel could object that even that allegation is not sufficiently close to the Albany allegation to render its probative value as greater than its prejudicial impact.

That is the difference between the New York Attorney General report and a criminal case. The report was the aggregation of allegations which were not proven in the sense of a criminal trial. Indeed, they were not proven even to the standard of a civil trial.

While I have been highly critical of Cuomo, I have also cautioned that, like Cosby, Cuomo deserves due process. It is not that Cuomo (who dismissed due process concerns in the Kavanaugh controversy) truly deserves such protections as a person, but he is legally entitled to them as a defendant. Indeed, it is a line that protects all citizens from unfair prosecutorial practices.

Cuomo’s case could easily morph with Cosby’s if the New York report is used as a template for prosecution. His greatest threat of prior bad act evidence would like be the trooper’s account, which was reportedly witnessed by another trooper. The danger for Cuomo is that a defendant needs to “run the table” on such challenges of prior bad acts. Even if he were able to pull a Cosby on the other incidents described in the report, that sole admission of a prior act could be devastating for the defense.

 

29 thoughts on “Cuomo’s Cosby Defense? The New York Governor Could Ultimately Rely on the Comedian’s Defense”

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  2. It’s about time to see one of the Cuomo klan get a taste of their own !!!. This corrupt demoratzi dynasty in the rotten apple has bourn only poisoned fruit and fed corruption in a rotten one party city.
    His fellow ratzis are aligning against him as those pulling the levers of power in the shadows do not want any challengers to their pet puppets baizou bide nand kammelhoe . A vast web of grift for power and backstabbing as only the demoratzi party opera can supply !!. Let them eat their own flavored with good old fashioned hypocrisy they have cornered the market with of late !.

    1. The issue is paramount when both Cosby and Epstein signed court documents that seek to exonerate Any and all potential defendant accessories that could be exposed to criminal violations.

  3. Impressed that you go full Cosby here, Turley. Maybe Cuomo can rock it out by leaning on the fact he didn’t roofie his victims and then talk about grabbing pussy with Billy Bush on TV?

    eb

  4. “Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.”

    Reputations are destroyed by inadmissible evidence in the court of public opinion long before admissible evidence is presented in a court of law. If only we all could suspend our collective judgment of an accused’s culpability until he is afforded the tried and true protections of the time-honored rules of evidence and the due process demand of cross-examination of his accuser. Only then can we be confident that we have properly judged this man.

    1. Jeff, all true. Just hope you apply the same reasoning to those on ” the other side”. A certain Representative from Florida for example.

      1. Paul,

        You mean Gaetz, I presume. His is a curious case. But for the fact that he may have had sex with a minor, what he did is not illegal. It is not illegal to be a Sugar Daddy to many Sugar Babies though some Democrats may think it unbecoming for a Congressman. Obviously, Trumpists could not care less how many “hook-ups” he had with teenage girls as long as they were above the age of consent. There was a time when Conservatives would have frowned on such quid pro quo’s, but not anymore. If Trump can be a Sugar Daddy to Stormy Daniels and the Playboy Bunny, why the hell can’t Gaetz?

    2. The current administration rubber stamps constitutional violations as they did so unceremoniously during the 2008 TBTF Banking debacle. And yes Republican Rino George Bush is font and center with the democrats. Surprised at Liz Chaney, don’t be it’s part and parcel of the line drawing definition game THERE ARE NO PARTIES BLURRED YEARS AGO.

  5. That is the difference between the New York Attorney General report and a criminal case. The report was the aggregation of allegations which were not proven in the sense of a criminal trial. Indeed, they were not proven even to the standard of a civil trial.

    Andy Cuomo’s actions are juvenile/sophomoric in nature and were conduct wholly unbecoming of a governor.

    If he were half the man he pretends to be Cuomo would resign the governorship of NYS in order to save the state the tawdry drama of an impeachment trial.

  6. Is Cuomo vaccinated for covid?
    Is he a smoker?
    Tell him guns are quicker.
    Suicide is dangerous.

      1. “You’re nothing to me. You’re nothing.”

        – Joe Biden (to Tara Reade after assaulting her)

        1. Joe Biden: You are nothing to me.” RE: Hunter Biden: He’s the smartest person I know.” By your fruits ye shall know them.” TRUTH has never been a line drawing definition game for the intellectual narrative.

      2. The glaringly obvious difference here is while Trump talked the crazy ,,,, biden did the nasty. Big difference …but you would be hard pressed to find a blue pilled partisan to admit or even concede the truth on this.
        And now we have Mr Arrogance of the rotten apple state hoisted by his own petard of his own making…precious , and quite entertaining !.
        Oh and let’s not forget the texas pedo – rat apparatchik whom just got nailed molesting a boy…his pics with AoC and kammelhoe all over the net….. the party of perversion !!!!.

  7. Music to tune of Fat Kids Skinny Kids

    Cuomo’s in the dumpster.
    Andrew Cuomo’s in the dumpster!
    He’s like Donald Trump..
    Both are from New York!
    They both have no shame…
    Each belongs at Fort Knox!
    Trumpster. And the Cuomo…
    Both need a lock!

  8. “New York courts have identified exceptions to the prohibition of prior bad acts evidence to establish the nature of the relationship, to complete a narrative of conduct, and other purposes. People v. Alvino, 519 N.E.2d 808, 812 (N.Y. 1987). In People v Mateo, 2 NY3d 383, 439 (2004), the court required a two-part inquiry: (1) requiring the proponent of the evidence to establish relevancy of the evidence and (2) “the court must weigh the probative worth of the evidence against its potential for undue prejudice resulting to the defendant.” Evidence of prior bad acts or uncharged crimes is inadmissible in New York to simply to show a propensity for crime or to assuage the defendant’s character.”
    ******************************
    “Prior bad acts,” “routine practice” and “habit” evidence are the lowest rungs on the quality of proof scale. They ought to be outlawed as scarcely probative of anything and almost always overly prejudicial. Just prove the damn facts of what actually happened not what may have happened in the past to skewer someone’s character, or, the other end of the cheap shot spectrum, to shield some negligent doctor who invariably can’t remember cutting off the wrong leg but feels certain it’s his “routine practice” to cut off the correct one!

  9. Cuomo! Is a cause bee.
    Andrew Cuomo is a Cosby!
    Ugly, Dudley…
    Kids who climb on rocks!
    Fat kids, skinny kids…
    Even kids with chickenpox…

  10. Issue is that Cuomo is governor and is demonstrably unfit for the position.

    Why isn’t the legislature impeaching him?

    Why aren’t the citizens of NY howling for his impeachment?

    Because they are Lefties and standards don’t matter to them (standards for Dems, Republicans are held to a much different standard – see Kavanaugh).

    Cue all the “But Trump…” comments.

  11. Cuomo is not Cosby, he is a very influential and powerful dyed in the wool Democrat and they don’t get in trouble. Rod Blagojevich he aint.

    1. Rod was too greedy , and not smart by half. Spend some time in the corrupt empire state. The whole Cuomo dynasty is brazenly corrupt and power hungry. They are the mob by any definition …it’s that absolute corruption and status they swim in and protect. Any bad happens to either Cuomo or his brother fredo is all good and well deserved by these corrupt arrogant swine.

  12. “…absence of mistake, or lack of accident.” could be appropriate here, if the case ever goes to trial, which I doubt

  13. Remember when Trump was recorded on NBC’s hot mike?

    These women love it. Especially with guys who have money & power!

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