Understanding Cuomo’s Criminal Charge of Forcible Touching

It was recently announced by the New York Attorney General’s Office that disgraced former New York governor Andrew Cuomo would be criminally prosecuted for an alleged groping of a female staffer at the governor’s mansion in Albany.

Specifically, Cuomo will be charged with one count of Forcible Touching, in violation of Penal Law Section 130.52.* That code makes it a class A misdemeanor to intentionally, and for no legitimate purpose:

1. forcibly touch 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; or

2. subject another person to sexual contact for the purpose of gratifying the actor’s sexual desire and with intent to degrade or abuse such other person while such other person is a passenger on a bus, train, or subway car operated by any transit agency, authority or company, public or private, whose operation is authorized by New York state or any of its political subdivisions.

For the purposes of this section, forcible touching includes squeezing, grabbing or pinching.

The crime carries up to one year in jail as a maximum punishment, though jail is not mandatory. A person convicted of this crime can also be sentenced to community service, a conditional discharge, or probation, among other things. The first conviction for this crime does not trigger sex offender registration, but the second does. That fact may prove important for Cuomo as there are other complainants and possible criminal charges potentially awaiting him in the future. Should he be convicted of this charge, and then convicted of another similar charge in the future, then he would become a registered sex offender.

It is difficult to predict whether Cuomo would prevail in this case at trial. Obviously, he is a well known political figure and he has been the subject of tremendous publicity concerning these allegations, so it will be difficult to find an unbiased jury in New York. Also, the other interesting variable for trial will be whether other complainants who have made accusations against Mr. Cuomo will be allowed to testify in this matter regarding the groping at the governor’s mansion. This issue of Molineux witnesses, as they are sometimes called, in sexual misconduct cases, is a subject of tremendous disagreement amongst lawyers and judges. Prosecutors recognize that these witnesses can be extremely powerful (see, e.g. the cases of Harvey Weinstein and Bill Cosby, in which the key to conviction was the fact that multiple witnesses testified about similar conduct by the defendants). Defense attorneys see this sort of “gang tackling” with multiple cases and complaints being presented at once as being violative of due process and constitutional protections. Regardless of where you fall on that issue, there is no doubt that Cuomo’s chances will almost certainly hinge on whether he is permitted to simply defend against one complainant, or whether the jury will hear from several of his alleged victims at once.

Matthew Galluzzo is a former prosecutor from the Manhattan Sex Crimes Unit. As a defense attorney, he has won stunning victories in groping cases in both state and federal court.

*Cuomo will likely also be charged with Sexual Abuse in the Third Degree and other related misdemeanors.