A former prosecutor told Capital Tonight it’s not clear why Albany County District Attorney David Soares isn’t prosecuting former Gov. Andrew Cuomo under the state’s sex crimes statute.

Former executive chamber aide Brittany Commisso accused Cuomo of groping her breast and buttocks in December 2020. In a statement released earlier Tuesday, DA Soares said that, while he found Commisso “credible," that the burden of proof was too high for him to bring charges.

Attorney Dan Schorr, of Dan Schorr LLC, explained that the allegations made by Commisso clearly violate the forcible touching statute of New York’s sex crimes law.

“[Soares’] statement doesn’t really make sense,” Schorr said. 

While district attorneys in both Nassau and Westchester counties have also declined to prosecute the former governor, Schorr explained that the situation in Albany is very different.

“[The district attorneys in Nassau and Westchester] said the victims were credible; that they were cooperative, but what they alleged didn’t make up the elements of a crime under New York penal law,” Schorr explained. “But in Albany, the allegations are groping a breast, groping a buttocks. That clearly violates the forcible touching statute if proven beyond a reasonable doubt. Why couldn’t the DA (prosecute) that? That isn’t said in the DA’s statement.”

Additionally, Schorr said Soares’ decision sends a bad message to other victims of sexual assault. 

"Victims are now hearing a DA say, ‘we may find you credible; you may cooperate, but we’re still not going to bring this charge,'" said Schorr.  

While multiple district attorneys have decided not to prosecute the former governor criminally, Schorr said Cuomo is still in legal trouble.

“This is not an exoneration. He’s still facing civil charges. He’s facing other exposure. We still don’t know if the Legislature is going to pursue anything. We don’t know if the [attorney general] is going to pursue clawbacks of the book money he got,” Schorr said. “So yes, he’s not going to be criminally charged for a sex offense, but it’s certainly a low bar when you consider if it was a good week or not.”