With a growing number of elected officials calling for him to resign and Albany’s leadership preparing an impeachment case, Gov. Andrew Cuomo faces a rough road ahead politically.

But he also faces the possibility of criminal charges.

On Tuesday, State Attorney General Letitia James’ released a damning 168-page report detailing a stunning history of claims — mostly corroborated — alleging that Cuomo made inappropriate comments, planted unwanted kisses and even groped women in the state’s employ and otherwise.

James chose to release the report without bringing criminal charges or even referring the matter to any district attorney, but some of the allegations may rise to the level of possible criminal behavior, a former prosecutor told THE CITY. One criminal probe is already underway.

Karen Agnifilo, a lawyer at Geragos & Geragos, was until recently a prosecutor in the Manhattan District Attorney’s office. She rose through the ranks over nearly 30 years in the office, ultimately becoming DA Cyrus Vance Jr.’s top deputy.

She said her reading of the James’ report indicates that in the case of two of the 11 women whose experiences were documented and mostly corroborated, a prosecutor could bring misdemeanor charges of forcible touching or third-degree sexual abuse or both.

Forcible touching carries a potential jail sentence of up to one year, third-degree sexual abuse up to three months.

In both cases, the incidents appear to fall within the two-year statute of limitations that applies to all misdemeanors in New York State. If Cuomo gets charged with a crime, it would be an extraordinary turn of events for a politician who, as a former attorney general, was once New York’s top law enforcement officer. 

“It certainly looks to me reading the allegations that, if the two-year statute of limitations is in effect, I could see two to three misdemeanors that could be brought here at least,” Agnifilo said.

Criminal Case Underway

The potential cases involve a top aide to Cuomo identified in James’ report as Executive Assistant No. 1 and a state trooper assigned to the governor’s detail.

As described in the report, Executive Assistant No. 1 reported that Cuomo had over time increasingly made inappropriate comments to her, asking if she’d ever cheated on her husband and offering up unwanted commentary about her dresses and her hair.

At one point in December 2019, she said Cuomo grabbed her buttocks while the two were taking a selfie inside the governor’s mansion in Albany. 

Gov. Andrew Cuomo holds a press conference in his Manhattan office, July 1, 2020. Credit: Ben Fractenberg/THE CITY

She also described another incident in the governor’s mansion that occurred in mid-November when she was alone with Cuomo in his personal office on the second floor. She said at one point he put his hands under her blouse and groped her breast.

Both alleged incidents fall within the two-year statute of limitations. The aide’s allegations are already under investigation by Albany County District Attorney David Soares. 

On Tuesday, shortly after James released her report, Soares “declined to comment further” on his “ongoing criminal investigation.” but in a tweet said he was requesting all investigative materials gathered by James’ investigators. 

Soares also invited other potential victims to contact his office.

Potential Pattern of Misconduct 

Agnifilo believes there is further potential for criminal charges in the case of the woman identified in James’ report as Trooper No. 1.

The investigators allege that Cuomo intervened to get the trooper assigned to his personal detail even though she didn’t have the required three years of experience.

The report alleged three incidents in which Cuomo is said to have made inappropriate physical contact with the trooper:

  • Once in an elevator in the governor’s Midtown office when she says he ran his finger from the top of her neck down her spine; 
  • Another when he kissed her on the cheek while she was stationed at his Mount Kisco home; 
  • A third in Belmont, Long Island, when she says he ran his hand from her belly to her hip as he walked by.

The incidents outside Cuomo’s home and in Belmont were both witnessed by others, according to the report.

The report does not say when the elevator encounter took place but the other two incidents are alleged to have occurred in the summer and fall of 2019, which puts them within the two-year statute of limitations.

The district attorneys in whose jurisdictions two of the three incidents with the female trooper took place said Wednesday they’ve requested information from the state attorney general’s office on any relevant evidence.

A spokesperson for Manhattan District Attorney Cyrus Vance Jr. — whose office would handle anything that happened at the governor’s midtown office —  stated, “When our office learned yesterday that the attorney general’s investigation of the governor’s conduct was complete, our office contacted the Attorney General’s Office to begin requesting investigative materials in their possession pertaining to incidents that occurred in Manhattan.”

Westchester County DA Miriam Rocah, who would have jurisdiction over any investigation into the alleged kissing incident in Mount Kisco, also requested information from James.

In a letter sent to James Wednesday, Rocah specifically noted that the report states that Trooper No. 1 alleged “that certain conduct of the governor occurred in Westchester County.”

Nassau County DA Joyce Smith would handle any examination of the third incident in Belmont, Long Island.  

On Wednesday morning, Nicole Turso, a spokesperson for Smith, stated, “We have requested the attorney general’s records related to any incidents that occurred in Nassau County and will thoroughly and expeditiously investigate any potential crimes.”

 Meanwhile, Agnifilo noted, pre-statute incidents can be charged as well if a pattern of misconduct can be established.

“If this is a course of conduct against the same person for a long period of time, that will definitely all come in,” she said. 

Some of the incidents reported by these two women were corroborated by other witnesses and contemporaneous communications they had with others at the time. But Agnifilo pointed out that corroboration is not required, and she noted that James found all 11 women to be credible.

“That’s made very clear in the report — that they found these women credible but they did not find the governor to be credible,” she said. “That was what was stunning to me in this report.”

‘Somebody Else’s Job’

A key question remains as to why the attorney general didn’t bring charges herself, or even refer the matter to specific local prosecutors — a decision that former Manhattan assistant district attorney and veteran criminal defense attorney Robert Gottlieb finds disturbing.

In releasing the report, James specifically stated that Cuomo had “broken multiple state and federal laws,” and that he’d “sexually harassed multiple women and, in doing so, broke the law.”

State Attorney General Letitia James speaks on investigation into Governor Andrew Cuomo sexual harassment allegations. August 3, 2021. Credit: Screengrab/YouTube

Gottlieb questioned James’ flat out assertion that Cuomo had broken the law before filing charges or even recommending prosecution.

“That statement is meaningless unless she refers the report specifically to either a state or federal prosecutor,” he said. “It may even be appropriate to have a prosecutor now convene a grand jury or file a criminal complaint, but it’s got to be based on evidence — not on an attorney general simply throwing out  a report and saying it’s somebody else’s job to prosecute.”

“To simply throw that out now with no understanding of where the chips may ultimately land is an inappropriate prosecution technique,” he added.