Albany district attorney calls criminal complaint filed by sheriff's office against former Gov. Andrew Cuomo 'potentially defective'

Former New York Gov. Andrew Cuomo's arraignment on a count of forcible touching has been postponed following a request from the Albany district attorney.

By Sonia Moghe and Gregory Krieg, CNN

(CNN) -- The case against former New York Gov. Andrew Cuomo on a sex crime charge was dealt a shocking blow on Friday when the Albany County district attorney, in a letter to the court, raised concerns over a "potentially defective" criminal filing.

In his letter, District Attorney David Soares questioned the validity of the complaint filed by the county sheriff's office -- which did not include a sworn statement from the alleged victim, former Cuomo aide Brittany Commisso -- and slammed the decision to file it without his knowledge.

Cuomo, a Democrat who resigned from his post in August after multiple women accused him of sexual harassment, has unequivocally denied the allegations, which accused him of forcible touching.

Soares also claimed that the complaint "misstates the relevant law" and failed to include pieces of testimony from Commisso that could potentially be viewed as "exculpatory" in court, though he did not offer details about the extent or value of what had been left out.

CNN has reached out to Commisso's attorney for comment. Rita Glavin, Cuomo's lawyer, did not respond to request for comment on Soares' letter and Cuomo spokesperson Rich Azzopardi declined to comment.

The remarkable request to put off Cuomo's arraignment for 60 days, from November 17 to early January of next year, was accepted by the judge in the case, Holly Trexler, and guaranteed that the political wrangling over the charge will move into a new and more explosive stage over the coming weeks. Glavin immediately denied the allegations when the complaint was first filed and has accused Albany County Sheriff Craig Apple of "patently improper" motives.

The criminal complaint, filed October 28 in Albany City Court, accused Cuomo of one count of misdemeanor forcible touching that allegedly took place at the governor's Executive Mansion in late 2020.

Apple has rejected the claims by Cuomo's team that he acted improperly, calling it a smear and insisting, "We get paid to protect people and help people. That's exactly what we are doing."

The complaint, signed by Amy Kowalski, an investigator with the Albany Sheriff's Office, was filed last week. But in a statement early that evening, shortly after news of it broke, Soares said he had been caught off guard.

"Like the rest of the public, we were surprised to learn today that a criminal complaint was filed in Albany City Court by the Albany County Sheriff's Office against Andrew Cuomo," Soares said. "The Office of Court Administration has since made that filing public. Our office will not be commenting further on this case."

Brian Premo, the attorney for Commisso, did an interview last weekend with Talk 1300 Radio in Albany in which he stopped short of criticizing the sheriff, but expressed surprise at how the process had unfolded. Commisso, he said, had "faith in the DA's office to investigate the matter and make a prosecutorial decision on the issues."

"It was my client's understanding that the district attorney's office was going to lead a thorough, apolitical investigation into the matter and then discuss the issues with my client and then my client would give her informed consent," Premo said. "It was our understanding that the sheriff was in agreement with that process, so she was just surprised by how it came about and what had occurred, but, again, she has been -- always will be -- a cooperative victim and she just wants justice."

Also last weekend, Glavin released a letter requesting that the Albany County Sheriff's Office preserve all records relating to the investigation into the former governor.

In her letter, tweeted by the former governor, Glavin asked that Apple preserve all communication between his office and the accuser and her attorney, as well as all communication between the Albany County Sheriff's Office and the press and any other legislators.

In addition, Glavin has alleged that either Apple or someone in his office leaked grand jury information to a reporter in August and said that Cuomo's legal team will call for an investigation into "unlawful grand jury leaks" from the sheriff's office.

"What did occur here was a clear abuse of power by the Sheriff and we plan to get to the bottom of it," Azzopardi, the Cuomo spokesperson, said in a statement released on Saturday.

Azzopardi called the sheriff's office investigation "unprofessional rogue," and that "there is zero corroborating evidence that a crime occurred."

On August 3, New York Attorney General Letitia James issued a report detailing repeated incidents of alleged sexual harassment by Cuomo, who left office a week after the investigation was made public. He was replaced by then-Lt. Gov. Kathy Hochul.

The complaint now in question is not directly predicated on the James report, which was conducted by a pair of outside investigators. But it does state that the allegations are supported by documentation, including testimony found in that report by an unnamed woman, as well as cell phone records, New York State Capitol entry "swipes" belonging to an unnamed person, New York State Police aviation records for December 7, 2020, and a text message from Cuomo's phone.

In a statement last Thursday, James described the charges against Cuomo as a vindication of her office's report, which Cuomo has attempted to discredit.

"From the moment my office received the referral to investigate allegations that former Governor Andrew Cuomo sexually harassed multiple women, we proceeded without fear or favor," James said. "The criminal charges brought today against Mr. Cuomo for forcible touching further validate the findings in our report."

This story has been updated with additional details Friday.

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