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.