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.
https://jonathanturley.org/2021/08/05/cuomos-cosby-defense-the-new-york-governor-could-ultimately-rely-on-the-comedians-defense/