The sex-crime case against former Gov. Andrew M. Cuomo was thrown into doubt on Friday after the Albany County district attorney wrote an extraordinary letter to the court in which he characterized a criminal complaint as “potentially defective” because it did not include a sworn statement by the victim that would allow a prosecution to proceed.
In a letter to an Albany, N.Y., judge, the district attorney, David Soares, took issue with the Albany County sheriff for “unilaterally and inexplicably” filing the complaint last week without the knowledge of Mr. Soares, whose own investigation was still active.
Mr. Soares noted several potential problems with the sheriff’s filing, saying that the failure to include a sworn statement from the alleged victim, Brittany Commisso, was hindering the district attorney’s office’s ability to “proceed with a prosecution on these papers.”
Portions of Ms. Commisso’s testimony were also excluded, and Mr. Soares asserted that one part of the complaint misstated the relevant law.
Mr. Soares described portions of Ms. Commisso’s testimony that were not included in the complaint as “exculpatory,” meaning that the evidence could be favorable to Mr. Cuomo. Experts cautioned that could mean something as narrow as a statement being inconsistent.
Mr. Soares, a Democrat, asked the judge, Holly Trexler of Albany City Court, to delay Mr. Cuomo’s arraignment, which had been scheduled for Nov. 17, for 60 days “to reduce the risk of a procedural dismissal of this case” and to give the district attorney “time to continue with our independent and unbiased review of the facts in this case.”
On Friday, Judge Trexler approved Mr. Soares’s request and postponed Mr. Cuomo’s arraignment until Jan. 7.
Mr. Soares’s letter underscored how the surprise decision last week by the sheriff, Craig Apple, who is also a Democrat, to charge the former governor without coordinating with the district attorney could ultimately threaten the case against Mr. Cuomo. Such coordination is typical in long-term, high-profile law enforcement investigations.
Ms. Commisso, a former executive assistant to Mr. Cuomo, told investigators that he reached under her blouse late last year and groped her breast while they were alone in the Executive Mansion in Albany. Mr. Cuomo has denied touching Ms. Commisso inappropriately and his lawyer has repeatedly cast doubt on her version of events.
In the complaint filed by Sheriff Apple, Mr. Cuomo was charged with forcible touching, groping Ms. Commisso “for the purposes of degrading and gratifying his sexual desires.”
Yet the sheriff ’s abrupt decision to charge Mr. Cuomo with a sex crime caught Ms. Commisso, Mr. Cuomo and even Mr. Soares off guard. Mr. Soares had not indicated whether his office intended to prosecute the case and it had been unclear until Friday how the case would proceed.
Sheriff Apple, under immense pressure, defended his office’s decision to move ahead last week by insisting that his investigators had conducted their own inquiry and that it was not necessary for his office to coordinate with the district attorney on a misdemeanor charge.
Experts, however, said it was highly unusual for a sheriff’s office or a police department to pursue a charge without consulting with prosecutor who would be responsible for prosecuting the case.
Sheriff Apple’s handling of the complaint raised concerns that the complaint had been botched and led Mr. Cuomo and his allies to accuse the sheriff of being driven by political motivations.
In his letter to the judge, Mr. Soares said the sheriff’s complaint relied mostly on a portion of the testimony Ms. Commisso gave to investigators from the state attorney general’s office this year as they scrutinized sexual harassment claims against Mr. Cuomo.
Mr. Soares wrote that it was “even more troubling” that the sheriff’s filings “excluded other portions of her testimony where she described the very same acts described in the complaint.”
The report that resulted from the investigation overseen by the attorney general, Letitia James, concluded that Mr. Cuomo had sexually harassed multiple women, including Ms. Commisso, and ultimately led to Mr. Cuomo’s resignation in August.
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