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RELEASES: Statements on sexual harassment investigation, book deal from Cuomo representatives Glavin, McGuire, Azzopardi, Mogul from November 8-18, 2021.
NYSNYS News
Nov. 18

Attorney Rita Glavin Issues Demand that the Attorney General’s Office Recuse Itself From All Pending Matters Involving Former Governor Cuomo After Revelations that Testimony Transcripts Were Selectively Redacted, Slowrolled, and Weaponized for AG’s Political Gain

Glavin Also Urges Assembly Judiciary Committee to Address all Misstatements, Falsehoods and Omissions In the AG’s Report


Copies of both submissions are attached.


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Additionally we urge the Attorney General’s Office to answer these critically important questions about the release of the transcripts.

In the Governor’s testimony he said directly to Joon Kim that Ibrahim Khan — the AG’s chief of staff— had been coordinating with Trip Yang and Lindsey Boylan‘s campaign and that it suggested collusion between James and Boylan. Other than to hide this obvious conflict of interest, why was this information redacted?
In Boylan's testimony, why didn’t they ask her about the fact that Liz Fine, current counsel to the governor, requested Boylan‘s termination for abusing staff?
Why didn’t they question Boylan about her texts to executive chamber staff specifically saying she would retaliate against the governor because “life is long and so is my memory and so are my resources” and “the future is coming after (expletive.)”
Brittany Commisso testified that the governor became more reserved after Boylan started tweeting attacks against him. Did James tell Sheriff Apple that the new date of her allegation, December 7, was after Boylan started tweeting and therefore inconsistent with Commisso’s testimony?
James said that she spoke to politicians in Albany for her investigation. Who are those politicians that James spoke to to inform her investigation and where are their transcripts?
James’ press release now says it was an “independent investigation." However, just four weeks ago James said that she personally conducted the investigation. Was she lying then or is she lying now?
Why didn’t investigators ask Charlotte Bennett about her activity at Hamilton College and her filing a false allegation?
Why did they omit the circumstances that caused the governor to talk to Bennett and provided the motivation for their conversation?
Why is James suddenly releasing the transcripts now after she said she had sent them to several district attorneys who are doing investigations?
Are the other district attorneys besides Albany not doing investigations?

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VIA EMAIL
Hon. Charles D. Lavine Chair, Judiciary Committee New York State Assembly Albany, New York 12248 lavinec@nyassembly.gov
Angela T. Burgess, Esq. Greg D. Andres, Esq. Martine M. Beamon, Esq. Uzo Asonye, Esq.
Davis Polk & Wardwell LLP
Counsel for Assembly Judiciary Committee 450 Lexington Avenue
New York, NY 10017 angela.burgess@davispolk.com greg.andres@davispolk.com martine.beamon@davispolk.com uzo.asonye@davispolk.com
GLAVIN PLLC
2585 Broadway #211 New York, New York 10025 646-693-5505
November 18, 2021
Re: Impeachment Investigation by the Judiciary Committee of the New York State Assembly
Dear Chair Lavine and Counsel:
We represent former Governor Andrew M. Cuomo and write with regard to the New York State Assembly Judiciary Committee’s (“Committee”) investigation and report on its findings. We understand that on Thursday, November 18 and Friday, November 19, members of the Committee will review a draft of the report prepared by Davis Polk & Wardwell LLP.
At the outset, we respectfully submit that the Committee’s decision to issue a report—when the very basis for this Committee’s investigation no longer exists—is nothing more than a political maneuver that would be misleading to the public and prejudicial to the Governor. On August 13, 2021, Speaker Carl Heastie announced that the Committee would “suspend its impeachment
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investigation” upon the Governor’s resignation.
The Speaker explained that the Assembly was
Statement of Speaker Carl Heastie on Impeachment Investigation, ASSEMBLY SPEAKER
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CARL E. HEASTIE (Aug. 13, 2021), https://nyassembly.gov/Press/?sec=story&story=98632; see

Hon. Charles D. Lavine Angela T. Burgess, Esq. Greg D. Andres, Esq. Martine M. Beamon, Esq. Uzo Asonye, Esq. November 18, 2021
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advised by Chair Lavine, with the assistance of counsel, “of the belief that the [State] constitution does not authorize the legislature to impeach and remove and an elected official who is no longer in office.”2 The Impeachment Jurisdiction Memorandum further reasoned:
Unlike the language used in the United States Constitution, section 24 of Article VI of the New York State Constitution expressly states that ‘[j]udgment in cases of impeachment shall not extend further than to removal from office, or removal from office and disqualification’ from future public office. Disqualification is thus expressly linked to removal, and the language does not seem to contemplate an impeachment or trial when removal from office is not the central determination. This interpretation is reinforced by the fact that, in New York State, no trial on an article of impeachment has proceeded after the official in question has resigned. Therefore, if an official resigns his or her public office at any point before conviction after trial in the Court for the Trial of Impeachments, the Court would lose its jurisdiction to rule in the matter, as it may only render a judgment that removes an official from office.
Impeachment Memorandum at 1. The Speaker further directed the Committee to turn over all
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Despite these pronouncements, shortly thereafter, the Committee reversed course on August 16,
2021, announcing the Committee would continue to review evidence and issue a final report on its
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evidence to the relevant investigatory authorities investigating the same topics as the Committee.
Any report at this time would trample on the Governor’s due process rights. We submit
findings.
that it is in the public’s interest for the Committee to instead abide by its commitment to stand down and allow the other investigations to proceed.
also Impeachment Jurisdiction Memorandum, ASSEMBLY SPEAKER CARL E. HEASTIE (Aug. 13, 2021), https://nyassembly.gov/write/upload/postings/2021/pdfs/20210813_0098640.pdf.
Statement of Speaker Carl Heastie on Impeachment Investigation, ASSEMBLY SPEAKER Id.
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CARL E. HEASTIE (Aug. 13, 2021), https://nyassembly.gov/Press/?sec=story&story=98632.
3
See Statement from Speaker Carl Heastie and Assembly Judiciary Chair Charles Lavine, ASSEMBLY SPEAKER CARL E. HEASTIE (Aug. 16, 2021), https://nyassembly.gov/Press/?sec=story&story=98668.
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Hon. Charles D. Lavine Angela T. Burgess, Esq. Greg D. Andres, Esq. Martine M. Beamon, Esq. Uzo Asonye, Esq. November 18, 2021
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However, to the extent the Committee intends to issue a report, we respectfully request: (1) access to all of the evidence the Committee has collected in its own investigation that will be the subject of any report issued by this Committee, including evidence underlying the New York Attorney General’s August 3, 2021 “Report of Investigation Into Allegations of Sexual Harassment by Governor Andrew M. Cuomo” (the “Report”); (2) the opportunity to review and respond to the Committee’s report before it is made public; and (3) that the Committee’s report
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We note also that the Committee members—many of whom are attorneys—owe a duty to the public to respond to the errors and omissions in the Attorney General’s Report. We provided to the Committee our October 20, 2021 application to “Amend, Correct and Supplement” the Report, enumerating the Report’s material omissions and errors. This application delineates the issues with the Report’s legal and factual conclusions – from concluding one of the most serious allegations occurred on a date that is demonstrably false to omitting evidence crucial to credibility determinations. We submit the Committee cannot and should not rely on the Attorney General’s Report, and the Committee has an obligation to the public to note the errors in the Report.
I. The Committee Should Provide Us Access to All Evidence Underlying the Attorney General’s Report and the Committee’s Report
First, we request all evidence that the Committee has collected in its investigation of the Governor on other issues be made available to us for review. We reiterate our request for access to all the underlying evidence of the Report the Committee has received from the Attorney General. Despite our previous requests for the evidence to both this Committee and the Office of the New
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York State Attorney General, the Attorney General’s office has ignored our requests and the
Committee, through counsel, denied our request on August 8, 2021 and ignored our subsequent requests. This has materially handicapped our ability to respond to the August 3, 2021 Report and make a fulsome submission to this Committee on the allegations.
To this day we have not been afforded the opportunity to review all of the evidence underlying the Report. On November 10, 2021—after three months of stonewalling our requests
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not address issues which are the subject of pending investigations to avoid prejudicing my client.
We incorporate by reference our letters August 5, August 9, September 13, September 30, and October 8, 2021 and our requests made therein, including that while it appears you have “abandoned” your investigation into the safety of the Mario M. Cuomo Bridge, you owe it to the public to make a statement on the matter so the public has confidence in the safety of the bridge.
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Sep. 13, 2021 Letter to the Committee; Oct. 8, 2021 Letter to the Committee.
See, e.g., Aug. 5, 2021 Letter to the Committee; Aug. 9, 2021 Letter to the Committee;

Hon. Charles D. Lavine Angela T. Burgess, Esq. Greg D. Andres, Esq. Martine M. Beamon, Esq. Uzo Asonye, Esq. November 18, 2021
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and the week after the Albany County Sheriff filed unprecedented and potentially defective charges against the Governor without even consulting the Albany County District Attorney—the
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Attorney General publicly released a limited set of redacted transcripts and exhibits.
disclosure redacted key information including: the Governor’s testimony about potential conflicts concerning the investigation, i.e., references to Lindsey Boylan’s campaign consultant Trip Yang communicating with the Attorney General’s chief of staff Ibrahim Khan about Ms. Boylan’s allegations; and entire pages of Ms. Boylan’s testimony that we believe discussed her relationship with her former boss and ESD-chief Howard Zemsky. Given that Ms. Boylan sent Mr. Zemsky a “disparaging message” which he found “jarring” and “threatening” and caused him to flip-flop in his recollection, their relationship could not be more relevant to Ms. Boylan’s credibility and any conclusions the Attorney General drew about her credibility.
The Attorney General’s limited disclosure also failed to include 30 of the transcripts, any memoranda or notes summarizing any of the 138 interviews they chose not to transcribe for public
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II. The Committee Should Provide Us an Opportunity to Review and Respond to the Committee’s Report Prior to its Public Issuance
We request the opportunity to review and respond to the Committee’s report prior to its public issuance. The Attorney General’s investigators did not provide us with this opportunity,
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scrutiny, or the 74,000 documents they purportedly collected.
has reviewed any of this information in preparing its own report, we, as counsel to the subject of the Committee’s investigation and report, request the right to review all such evidence. Lack of access to all evidence hinders our ability to respond and deprives the Governor of due process.
leading to a flawed and misleading Report with material errors and omissions.
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The prejudice
To the extent that the Committee
This selective
Transcripts and Exhibits From Independent Investigation Into Sexual Harassment Allegations Against Former Governor Cuomo Begin to Be Released, LETITIA JAMES NEW YORK STATE ATTORNEY GENERAL (Nov. 10, 2021), https://ag.ny.gov/press-release/2021/transcripts- and-exhibits-independent-investigation-sexual-harassment-allegations.
Report at 15.
See, e.g., Former Governor Andrew M. Cuomo’s Application to Amend, Correct, and Supplement the August 3, 2021 ‘Report of Investigation into Allegations of Sexual Harassment by Governor Andrew M. Cuomo,’ WGRZ-TV (Oct. 20, 2021); Gov. Cuomo’s Outside Counsel Rita Glavin Holds Virtual Briefing, YOUTUBE (Aug. 20, 2021), https://www.youtube.com/watch?v=UpmviENazuA; Outside Counsel Rita Glavin Makes an Announcement, YOUTUBE (Aug. 10, 2021), https://www.youtube.com/watch?v=otxfPhSoBkc;

Hon. Charles D. Lavine Angela T. Burgess, Esq. Greg D. Andres, Esq. Martine M. Beamon, Esq. Uzo Asonye, Esq. November 18, 2021
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caused to the Governor by that Report, and the Attorney General’s press conference announcing the Report, has been irreparable. Indeed, the Attorney General has refused to engage with us despite our October 20, 2021 application to “Amend, Correct and Supplement” the Report. The fact that the Attorney General has been on notice of the many omissions and errors, yet refused to take any meaningful steps to correct and supplement the Report is telling of the bias and political motives behind the Report.
It is common policy or practice for investigators, including the New York Inspector
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See, e.g., STATE OF NEW YORK OFFS. OF THE INSPECTOR GEN., INVESTIGATION OF THE NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES POLITICAL SUBDIVISION PROGRAM 13 (2021), https://ig.ny.gov/system/files/documents/2021/03/03.04.21.dmvpsd2761.014.2019-alb.pdf (DMV “fully cooperated with the Inspector General’s review and has examined its findings”); STATE OF NEW YORK OFFS. OF THE INSPECTOR GEN., INVESTIGATION OF THE NEW YORK STATE OFFICE OF MENTAL HEALTH HUTCHINGS PSYCHIATRIC CENTER 2 (2016), https://ig.ny.gov/sites/g/files/oee571/files/2017-02/OMHHPCFinalReport10.31.16.pdf (“In response to the Inspector General’s report, OMH advised it was in agreement with the findings
and recommendations . . . .”).
10
10
Attorney Rita Glavin Holds Media Availability, YOUTUBE (Aug. 6, 2021),
General,
the United States Department of Justice’s Office of the Inspector General,
and the
https://www.youtube.com/watch?v=FP6_KMVBnNk.
10
See, e.g., STATE OF NEW YORK OFFS. OF THE INSPECTOR GEN., INVESTIGATION OF THE NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES POLITICAL SUBDIVISION PROGRAM 13 (2021), https://ig.ny.gov/system/files/documents/2021/03/03.04.21.dmvpsd2761.014.2019-alb.pdf (DMV “fully cooperated with the Inspector General’s review and has examined its findings”); STATE OF NEW YORK OFFS. OF THE INSPECTOR GEN., INVESTIGATION OF THE NEW YORK STATE OFFICE OF MENTAL HEALTH HUTCHINGS PSYCHIATRIC CENTER 2 (2016), https://ig.ny.gov/sites/g/files/oee571/files/2017-02/OMHHPCFinalReport10.31.16.pdf (“In response to the Inspector General’s report, OMH advised it was in agreement with the findings and recommendations . . . .”).
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See Application of Standards of Quality by the OIG, OIG Audits, U.S. DEP’T OF JUST. OFF. OF THE INSPECTOR GEN., https://oig.justice.gov/foia/guidelines (last visited Nov. 17, 2021) (“ . . . a copy of each internal audit report is provided in draft to the Department component that was the subject of the audit for review and comment prior to final dissemination. The audited entity’s comments are published in the final report.”); see also, e.g., U.S. DEP’T OF JUST. OFF. OF THE INSPECTOR GEN., AUDIT OF THE DEPARTMENT OF JUSTICE POLICY ON BODY WORN CAMERAS i (2021), https://oig.justice.gov/sites/default/files/reports/21-085.pdf (“In May 2021, we provided a draft of this report to DOJ and the Components for review . . . .”); U.S. DEP’T OF JUST. OFF. OF THE INSPECTOR GEN., AUDIT OF THE DRUG ENFORCEMENT ADMINISTRATION’S LABORATORY

Hon. Charles D. Lavine Angela T. Burgess, Esq. Greg D. Andres, Esq. Martine M. Beamon, Esq. Uzo Asonye, Esq. November 18, 2021
Page 6
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public, and the investigators themselves by serving to ensure the “factual accuracy” of reports. Indeed, in “high profile and sensitive matters”—which would include allegations against the former Governor of New York—agencies recognize the need for “extra care” to “assure that ... reports are objective and accurate.”14
III. The Report Should Not Address Allegations at Issue in Ongoing Investigations, or, at Minimum, Should Consider Key Information Related to Those Issues
INFORMATION MANAGEMENT SYSTEM SUPPORT CONTRACTS App. 3 (2021),
https://oig.justice.gov/reports/audit-drug-enforcement-administrations-laboratory-information- management-system-support (appending “The Drug Enforcement Administration’s Response to the Draft Audit Report” to investigatory report).
12
United States Department of Justice’s Office of Professional Responsibility,
subject of an investigation an opportunity to review and respond to the investigation’s findings before they are made public. That process functions to protect the subjects of investigations, the
13
to provide the
See Policies and Procedures, U.S. DEP’T OF JUSTICE, OFFICE OF PRO. RESP., https://www.justice.gov/opr/policies-and-procedures (last visited Nov. 17, 2021) (“If OPR determines that the subject attorney committed professional misconduct, prior to issuing a final report, the subject attorney, pursuant to a confidentiality agreement, and the component head may review the draft report, comment on the factual findings, and offer arguments as to why OPR should alter its conclusions. OPR will consider the comments and incorporate them into the final report, to the extent OPR considers it appropriate.”); see also, e.g., U.S. DEP’T OF JUST. OFF. OF PRO. RESP., EXECUTIVE SUMMARY OF REPORT vi (2020), https://www.justice.gov/opr/page/file/1336471/download (“The subjects reviewed and provided comments on their respective interview transcripts and on OPR’s draft report.”); U.S. DEP’T OF JUST. OFF. OF PRO. RESP., REPORT OF INVESTIGATION INTO THE CONDUCT OF FORMER UNITED STATES ATTORNEY R. BOOTH GOODWIN II 5 (2018), https://www.justice.gov/opr/page/file/1207181/download (“On March 22, 2018, OPR sent its draft report to the USAO, Ruby, and Goodwin, and provided them with an opportunity to review and comment on the draft report.”).
13
U.S. DEP’T OF JUST. OFF. OF THE INSPECTOR GEN., Review of the Department of Justice’s Planning and Implementation of Its Zero Tolerance Policy and Its Coordination with the Departments of Homeland Security and Health and Human Services 7, https://oig.justice.gov/sites/default/files/reports/21-028_0.pdf.
14
GEN., https://oig.justice.gov/foia/guidelines (last visited Nov. 17, 2021).
See Office of Oversight and Review Reports, U.S. DEP’T OF JUST. OFF. OF THE INSPECTOR

Hon. Charles D. Lavine Angela T. Burgess, Esq. Greg D. Andres, Esq. Martine M. Beamon, Esq. Uzo Asonye, Esq. November 18, 2021
Page 7
As the Committee is aware, the U.S. Attorney’s Office for the Eastern District is investigating allegations concerning reporting of COVID-19 data and “preferential” COVID-19
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Alternatively, if the Committee’s report will address those issues, we request that the Committee include: (a) the Executive Chamber’s submission regarding the reporting of COVID- 19 data; and (b) the June 20, 2021 letter to the Attorney General from outside counsel for New York Department of Health’s addressing “preferential” COVID-19 testing. We further request, again, that to the extent the Committee addresses the issue of Executive Chamber staff volunteering to work on the book, and taking personal time off to do so, this Committee consider the standard practice of state employees volunteering on campaign-related activities.
a. Allegations Concerning COVID-19 Data
Although the Governor denies any wrongdoing in the reporting of the number of tragic deaths at nursing homes in the burgeoning global pandemic, to extent the Committee denies our request and its report will include allegations concerning reporting data concerning nursing home deaths, we reiterate our October 8, 2021 request that the Committee fully consider and include the extensive and detailed written submission by the Executive Chamber to the U.S. Attorney’s Office for the Eastern District of New York on this very issue. As the Executive Chamber explained,
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testing,
of the Governor’s book and alleged “preferential” COVID-19 testing.
should not address those allegations to avoid prejudice to the Governor and to respect his fairness and due process rights. Instead, the Committee should turn over any evidence it has collected to those other investigators.
and the Attorney General is reviewing allegations concerning the writing and production
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The Committee’s report
See e.g., Jonathan Dienst, Joe Valiquette and Tom Winter, U.S. attorney, FBI investigating Cuomo's handling of nursing home deaths, NBC News (Feb. 17, 2021), https://www.nbcnews.com/news/us-news/u-s-attorney-fbi-investigating-cuomo-s-handling- nursing-home-n1258207; J. David Goodman, Preferential Testing in N.Y. Leads to a Federal Investigation into Cuomo, The Latest in a Slew of Inquiries, N.Y. TIMES (May 21, 2021), https://www.nytimes.com/2021/05/21/world/preferential-testing-in-ny-leads-to-a-federal- investigation-into-cuomo-the-latest-in-a-slew-of-inquiries.html.
See e.g., Denis Slattery, N.Y. Comptroller DiNapoli grants AG James power to launch probe into Cuomo COVID book, N.Y. Daily News (Apr. 19, 2021), https://www.nydailynews.com/news/politics/new-york-elections-government/ny-cuomo-ag- james-investigation-covid-book-20210419-7vklvh7k4jds3bkjvhzzzuog7m-story.html.

Hon. Charles D. Lavine Angela T. Burgess, Esq. Greg D. Andres, Esq. Martine M. Beamon, Esq. Uzo Asonye, Esq. November 18, 2021
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“New York State’s executive branch and its employees acted within their authority in the face of an unprecedented crisis.”17
b. Allegations Concerning “Preferential” COVID-19 Testing
The Governor did not engage in any unlawful conduct concerning “preferential” COVID- 19 testing and any report on this issue must address our concerns about the Committee’s objectivity on this topic, given the numerous legislators and their staff members who also received “preferential” testing. To the extent the Committee’s report will include allegations concerning “preferential” COVID-19 testing, we reiterate our prior request that the Committee fully consider for the New York State Department of Health’s (“DOH”) June 20, 2021 letter to the New York State Attorney General’s Office, which explains why “there was nothing improper about any of the testing that was performed here, including but not limited to the testing that was undertaken in the first chaotic months of the Covid-19 pandemic as the State rushed to develop its testing program amidst the turmoil caused by a global pandemic.”
The June 20, 2021 DOH letter further described how the “State’s evolving testing efforts encompassed thousands of New Yorkers from both the public and private sectors, and were in no way limited to the Governor or his family,” and that testing “complied with New York State policy and the State’s overarching goal of protecting critical government operations, and was consistent with New York’s broader efforts to identify and prevent COVID-19 exposures . . . .”
Moreover, DOH’s letter made clear that “State Assemblypersons and their staffs, State Senators and their staffs” and “at least one person working for and with the Attorney General on Executive Operations matters” were among those that received priority testing from the State. We also understand that members of this Committee were among those who received preferential COVID-19 testing, and family members of state legislators also likely received preferential COVID-19 testing. Therefore, we reiterate that if this Committee chooses to address purported “preferential” COVID-19 testing in its report – and we question the Committee’s objectivity and ability to issue a fair report on this issue – this Committee must also address the issue of numerous state legislators, including both members of the State Senate and Assembly, who received preferential COVID-19 testing for themselves and various staff members.
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c. Allegations Concerning Use of State Resources in Producing the 2020 Book
See N.Y. Daily News Editorial Board, Shine a Light: Cuomo’s Nursing-Home Defense Document Goes Public, N.Y. DAILY NEWS (Oct. 12, 2021), https://www.nydailynews.com/opinion/ny-edit-nursing-home-report-20211012- n32lut7lcfg2fnnuktgumuqbwu-story.html (attaching outside counsel’s memorandum).

Hon. Charles D. Lavine Angela T. Burgess, Esq. Greg D. Andres, Esq. Martine M. Beamon, Esq. Uzo Asonye, Esq. November 18, 2021
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The Governor disputes any notion that he acted unlawfully in writing and finalizing for production his 2020 book “American Crisis: Leadership Lessons from the COVID-19 Pandemic.” To the extent the Committee’s report will include findings on allegations of use of state resources, we ask that you consider standard practices of New York State politicians and their employees.
As you are undoubtedly aware, a small number of state employees voluntarily assisted my client. The time those employees spent assisting the Governor on the book did not take away from the considerable time they spent on their state duties. The Governor has explained through his spokesman that, “people who volunteered on this project did so on their own time.”18 We presume this Committee obtained time records reflecting personal time taken for work on the book.
Further evidencing the Governor’s understanding that this was lawful, we are aware that state employees employed by State Senators and Assemblymembers routinely participate in campaigns and fundraising. Undoubtedly, state employees working for Governor Kathleen Hochul and Attorney General Letitia James are working on these officials’ gubernatorial campaigns as well, and we are doubtful that all of those employees are taking personal time off to do so. This is particularly the case for new senior staffers in the Executive Chamber who have not accrued enough personal time to take off for campaign and fundraising activities.
We appreciate your consideration and look forward to your response. Respectfully submitted,
_______/s/______________________ Rita M. Glavin
18
Jane Wester, NY Ethics Board Revokes Approval for Cuomo’s COVID-19 Leadership Book Deal, N.Y. L. J. (Nov. 16, 2021), https://www.law.com/newyorklawjournal/2021/11/16/ny- ethics-board-revokes-approval-for-cuomos-covid-19-leadership-book- deal/?kw=NY%20Ethics%20Board%20Revokes%20Approval%20for%20Cuomo%27s%20CO VID- 19%20Leadership%20Book%20Deal&utm_source=email&utm_medium=enl&utm_campaign=n ewsroomupdate&utm_content=20211116&utm_term=nylj.

Hon. Charles D. Lavine Angela T. Burgess, Esq. Greg D. Andres, Esq. Martine M. Beamon, Esq. Uzo Asonye, Esq. November 18, 2021
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cc: Members of Assembly Judiciary Committee

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VIA EMAIL
Hon. Letitia Ann James
New York State Attorney General Office of the Attorney General The Capitol
Albany, NY 12224-0341 Letitia.James@ag.ny.gov
GLAVIN PLLC 2585 Broadway #211 New York, New York 10025 646-693-5505
November 18, 2021
Re: Request for New York State Attorney General’s Office to: Recuse Itself from Ongoing Investigations Related to Governor Cuomo; Provide Us Access to All Evidence Underlying the August 3, 2021 Report; and Commence and Refer an Investigation into Unlawful Grand Jury Disclosures
Dear Attorney General James:
I represent former Governor Andrew M. Cuomo and write to request that you:
(1) immediately recuse your Office from (a) any further involvement in decisions concerning the August 3, 2021 Report of Investigation into Allegations of Sexual Harassment by Governor Andrew M. Cuomo (the “Report”), and (b) your pending criminal investigation of Governor Cuomo for alleged misuse of state resources, because your Office’s actions create the appearance that are you are using your Office to further your campaign for Governor—the same Office from which the Governor was essentially forced to resign following your August 3, 2021 Report, thereby clearing an easier path for your gubernatorial run announced on October 29, 2021;
(2) provide us with immediate access to all of the underlying evidence (without redactions) of the Report, including all notes and memoranda concerning the more than 179 interviews your Office conducted, as well as the 74,000 documents your Office collected (as we have previously requested of you on numerous occasions and received no response); and
(3) confirm that an investigation of Sheriff Craig D. Apple and his office for unlawful disclosure of grand jury information will be commenced and referred to a truly independent prosecutor, pursuant to N.Y. Exec. L. § 75, in response to our November 8, 2021 letter (to which you have not yet responded).

Attorney General Letitia Ann James November 18, 2021
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I. Recusal of Your Office from Matters Concerning Governor Cuomo
Your conduct since March 2021 has unquestionably resulted in, at minimum, an apparent
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There remains widespread speculation that the former Governor may enter the
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conflict of interest in matters concerning Governor Cuomo.
your Office and the ongoing review of the Governor’s conduct, you should recuse your Office from: (a) any further decisions relating to your Report, and (b) the broad-ranging criminal investigation referred to you on April 13, 2021 by Comptroller Thomas DiNapoli into alleged misuse of state resources.
gubernatorial race.
dismissed the idea he could try a political comeback — and soon[,]”3 and “keep floating the idea that he could run for something again — governor or attorney general perhaps[.]”4 Because you have viewed and continue to view the Governor as a political rival for the job you are now campaigning for, your strong motivation to handle these pending matters in a manner most beneficial to your political ambitions mandate you to recuse your Office. Similarly, the obvious motivation for you to unnecessarily prolong your Office’s investigation into the alleged misuse of state resources (when there was none) and use government resources to continue publicly damaging the Governor and those who worked closely with him requires the recusal of your Office.
Indeed, the press reported this week that the Governor’s “advisers haven’t
Your actions reflect a state official acting in her personal political interest rather than in the best interest of the state for the reasons set forth in more detail below, including: (1) your violation of the March 1, 2021 referral (the “Referral”) which provided that an independent law firm conduct the investigation, as opposed to you and your Office; (2) the resulting misleading Report you have failed to amend, correct, and supplement; (3) your promoting the misleading Report in support of your campaign for governor while dismissing our legitimate concerns of it that are also shared by journalists and members of the public; and (4) your selective and slow release on a rolling basis of
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3 4
Section 74(3)(h) of the Public Officer’s Law requires state officials to “pursue a course of conduct which will not raise suspicion among the public that he or she is likely to be engaged in acts that are in violation of his or her trust.”
2
Alone, POLITICO (Nov. 15, 2021), https://www.politico.com/news/2021/11/15/andrew-cuomo-
Anne Gronewold, ‘He’s Nuts and He’s Got a Vendetta’: Cuomo Won’t Leave New York wont-leave-ny-521205.
In order to preserve the integrity of
Id.
S.E. Cupp, Cuomo Still Haunts and Taunts N.Y., N.Y. Daily News (Nov. 17, 2021), https://www.nydailynews.com/opinion/ny-oped-post-resignation-cuomo-20211117- yjpij2di7vhh3abf3ythaw7fpi-story.html.

Attorney General Letitia Ann James November 18, 2021
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only some of the evidence underlying the Report to support your Report’s findings and inflict maximum damage on the Governor –
A. TheFlawedInvestigationandReportDemonstrateanAppearanceofImpropriety
Given (1) the two Investigators you appointed to handle the investigation were not “independent” as required by the March 1, 2021 Referral, (2) the manner in which your Office conducted the investigation did not comport with fairness principles, (3) you were personally involved in the Investigation in violation of terms of the Referral, and (4) the resulting Report was materially misleading given material omissions and errors, the entire process was infected with bias and driven toward a predetermined outcome – directly contrary to what was to be an independent and fair inquiry “into allegations of and circumstances surrounding sexual harassment claims made against the Governor.”5 At minimum, all these facts demonstrate an appearance of impropriety.
First, we have made our position clear that the two Investigators you appointed to handle the investigation were not “independent,” as required by the Referral. They had obvious biases and predispositions regarding the subject matter of the investigation and the Governor. Ms. Clark was a plaintiff’s lawyer whose practice is focused on bringing lawsuits for sexual harassment and discrimination; and Mr. Kim was a former federal prosecutor who spent years supervising investigations into the Governor and the Executive Chamber, including personally interviewing the Governor in an investigation. The fact that you appointed a plaintiff’s lawyer was telling, because you had specifically assured the Governor you would not do so at the time of the Referral when you both discussed appointing an “independent” law firm.
Second, the manner in which your appointed Investigators approached this investigation— including the evidence they obtained and did not obtain, the way they approached witness interviews of the complainants versus the Governor and his staff, and the glaring omissions and deficiencies in the Report produced from that investigation that bears your name at the top— demonstrates that this investigation had a predetermined outcome and was anything but “exhaustive, thorough, and without outside influence, period.”6 Indeed, the investigation was replete with missteps you have neither addressed nor corrected, including the failure to transcribe
5
6
Attorney General James Receives Referral Letter to Investigate Allegations of Sexual Harassment Against Governor Cuomo, LETITIA JAMES NEW YORK STATE ATTORNEY GENERAL (Mar. 1, 2021), https://ag.ny.gov/press-release/2021/attorney-general-james-receives-referral- letter-investigate-allegations-sexual.
Statement from Attorney General’s Office in Response to Rita Glavin’s Comments, LETITIA JAMES NEW YORK STATE ATTORNEY GENERAL (Aug. 20, 2021), https://ag.ny.gov/press- release/2021/statement-attorney-generals-office-response-rita-glavins-comments.

Attorney General Letitia Ann James November 18, 2021
Page 4
the more than 179 interviews conducted, which allowed for inconsistencies in accounts to be addressed before the 41 final, transcribed interviews under oath.
Critically, in violation of the Referral, you admitted having been personally involved in the investigation, as opposed to leaving it entirely to the purported “independent law firm” you selected. Governor Cuomo’s Referral to the Attorney General pursuant to N.Y. Exec. L. § 63(8) specified that the Attorney General must “select an independent law firm to conduct an inquiry into allegations of and circumstances surrounding sexual harassment claims made against the Governor.”7 Governor Cuomo made clear as early as March 2019 that he intended to run for a fourth term in 20228 and, at the time of the Referral, you would not disavow any intention to run for governor in 2022. This presented a conflict for your Office to investigate the Governor – a conflict about which the Governor specifically expressed his concern to you at the time of the Referral. Thus, the Governor’s Referral was drafted precisely to limit your personal involvement due to your refusal to disavow any intention to run for governor and the public knowledge at that time that the Governor Cuomo intended to run for a fourth term.
Specifically, on September 30, 2021, you made clear that you violated the Referral by admitting you were personally involved in the investigation and in reaching the investigation’s
conclusions.
7
8
9
When they came into my office, and they told me about the fact that
You reportedly stated:
Albany was toxic . . . how they were harassed. . . I believed them,
Attorney General James Receives Referral Letter to Investigate Allegations of Sexual Harassment Against Governor Cuomo, LETITIA JAMES NEW YORK STATE ATTORNEY GENERAL (Mar. 1, 2021), https://ag.ny.gov/press-release/2021/attorney-general-james-receives-referral-letter-investigate- allegations-sexual (emphasis added).
See e.g., Joseph Spector, Cuomo 2022? Governor Hits at Running For a Fourth Term, DEMOCRAT & CHRONICLE (Mar. 29, 2019), https://www.democratandchronicle.com/story/news/politics/albany/2019/03/29/cuomo-2022- governor-hints-running-fourth-term/3311851002/ (“Asked if that meant he will run for a fourth term, Cuomo initially laughed and then said, ‘Well, it’s state money raised for a re-election. So yes.’”); Michael Gormley, ‘I Know This Job’: Andrew Cuomo Will Run For 4th Term as New York Governor, GOVERNING (May 29, 2019), https://www.governing.com/archive/tns-cuomo- will-run-for-governor-2022.html (“I plan to run for a fourth term” and “I know this job, I work seven days a week at it, and I think we have accomplishments. And the older you get, the simpler it gets. I think I'm doing good things ...”).
9
Bernadette Hogan, ‘Stay tuned’: AG Letitia James tells Dem Leaders on When She Will Decide Gov Run, N.Y. POST (Oct. 1, 2021), https://nypost.com/2021/10/01/letitia-james-hints-at- run-for-new-york-governor/ (emphasis added).

Attorney General Letitia Ann James November 18, 2021
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because they were specific. They gave me concrete examples. And everyone in Albany, every politician that I knew said, “yeah, it was like that Tish,” but it was these young women who marched in, gave me the facts, gave me the evidence, worked with the independent attorneys . . . . They’re the heroes, not me, and not Mr. Cuomo . . . There are individuals, and one in particular, and his allies, who are trying to discredit and trying to undermine this investigation, and will argue that I politicized it. No. I put my head down. It was all
10
By personally making evidentiary and credibility determinations, and personally injecting political influence into what was meant to be an independent review by receiving input from “everyone in Albany, every politician [you] knew,” you violated the Referral.
Just two days ago, you again admitted to violating the Referral. You claimed: “The investigation was referred to me by Governor Cuomo...He said: ‘Tish investigate these allegations of sexual harassment.’ He said, ‘I believe in you. You’ve done a good job. Let Tish investigate,’...I did. Unfortunate that he didn’t agree with the outcome.”11 The Governor never asked to you to “investigate these allegations,” nor did he state that he “believe[s] in you” and “Let Tish investigate.” The Referral did not confer jurisdiction on you to supervise or participate in the investigation or drafting of the Report, beyond selecting the independent law firm and receiving weekly status reports. To the contrary, the terms of the Report were meant to prevent your personal involvement given your refusal to disavow any intention to run for governor at the time of the Referral.
According to your public statements, you did not hand the reins of this investigation to an “independent” law firm, as was required by the Referral. Rather, you were personally involved and vested in the investigation of a political rival against whom you were exploring a campaign to run for governor. This was a clear violation of the terms of the Referral. Indeed, you put your name on the cover of the Report and have referred to it as “our investigation” and “our report.”
The lack of fairness in how the investigation was conducted culminated into the materially misleading Report that contained glaring omissions and errors. The Report cannot be accepted at face value for the many reasons—factual, legal, and evidentiary—detailed in our October 20, 2021
about the facts, and all about the evidence.
10
Decide Gov Run, N.Y. POST (Oct. 1, 2021), https://nypost.com/2021/10/01/letitia-james-hints-at-
Bernadette Hogan, ‘Stay tuned’: AG Letitia James tells Dem Leaders on When She Will run-for-new-york-governor/ (emphasis added).
11
Candice Ferrette, AG James Defends Harassment Investigation of Cuomo, NEWSDAY (Nov. 16, 2021), https://www.newsday.com/long-island/politics/letitia-james-long-island- association-1.50424577.

Attorney General Letitia Ann James November 18, 2021
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application to amend, correct, and supplement the Report, which you have refused to meaningfully
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B. YourPromotionofYourFlawedReporttoSupportYourCampaignforGovernor
Your public comments over the last several months have further demonstrated your impartiality concerning Governor Cuomo, who resigned from office based on your Report, only for you to announce your candidacy for his office just three months later, relying on your Report with findings against him in support of your campaign.
First, when we pointed out the many material omissions and errors in your Report, instead of carefully considering those valid issues – shared by journalists as set forth below – as the chief legal officer of New York State, your Office immediately issued a statement dismissing those concerns as “attacks, lies, and conspiracy theories.”13 Indeed, on August 6, 2021, after we pointed out material omissions and errors in your Report, your Office issued a press statement under the misleading heading: “Statement from Attorney General’s Office in Response to Attacks on 11 Women Harassed by Governor Cuomo.”14 As you know, the Report did not find that the Governor sexually harassed eleven women, although the Report was written in a misleading manner to cause the public to believe that. More recently, your Office referred to our criticisms as a “charade[.]”15
Journalists have also questioned the Report’s conclusions and the investigative process, noting that, “the anti-Cuomo putsch was full of holes, predicated on the worst kind of emotional
12
13
14
15
address.
We have made clear in public presentations on August 6, 10, and 20, 2021, as well as in written submissions, the many material omissions and errors in your Report. We incorporate by reference our October 20, 2021 Application to Amend, Correct, and Supplement the Report, to which your Office has still not responded in any substantive manner.
Statement from Attorney General’s Office in Response to Rita Glavin’s Comments, LETITIA JAMES NEW YORK STATE ATTORNEY GENERAL (Aug. 20, 2021), https://ag.ny.gov/press- release/2021/statement-attorney-generals-office-response-rita-glavins-comments; see also Keshia Clukey, Cuomo Lawyer to Ask N.Y. Attorney General to Correct Report, BLOOMBERG (Aug. 20, 2021), https://www.bloomberg.com/news/articles/2021-08-20/cuomo-s-lawyer-to-ask- n-y-attorney-general-to-correct-report.
Statement from Attorney General’s Office in Response to Attacks on 11 Women Harassed by Governor Cuomo, LETITIA JAMES NEW YORK STATE ATTORNEY GENERAL (Aug. 6, 2021), https://ag.ny.gov/press-release/2021/statement-attorney-generals-office-response-rita-glavins- comments.
Attorney General’s Office Responds to Today’s Cuomo Attacks, LETITIA JAMES NEW YORK STATE ATTORNEY GENERAL (Oct. 20, 2021), https://ag.ny.gov/press-release/2021/attorney- generals-office-responds-todays-cuomo-attacks (emphasis added).

Attorney General Letitia Ann James November 18, 2021
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blackmail tactics, and spearheaded by people with manifestly dubious motives.”16 For example, the Editorial Board of the New York Daily News explicitly recognized the problems with the Report in an August 24, 2021 editorial, concluding: “The report authored by former U.S. Attorney Joon Kim and employment lawyer Anne Clark has problematic inclusions and omissions.”17 Later, former federal prosecutor Jim Zirin wrote, “Cuomo was the target of a smear campaign authored by two supposedly independent lawyers working for James. . . . Also seriously, Cuomo has never been given an opportunity to confront his accusers and probe this area on cross-examination. He has never been given full access to the . . . interview transcripts on which many of the report’s conclusions are based.”18 David Pinkus criticized the violation of “basic due process” for the gain of “political rivals.”19 But your Office has refused to meaningfully address our application to Amend, Correct, and Supplement the Report.
Further, you have been using your misleading and flawed Report to bolster your gubernatorial campaign. Just two days ago, at a Long Island Association event, “not billed as a campaign event,” you defended your Report in “[your] speech updat[ing] the business community on [your] office’s accomplishments while laying out political priorities.”20 You stated that “it’s important that everyone understand the facts...” and that you “did” investigate, but the Governor “didn’t agree with the outcome.”21 For the reasons set forth above, these statements are inaccurate
16
17
18
Michael Tracey, Unprecedented Abuse Of Power: What The Media Still Isn’t Telling You About The Cuomo Debacle, SUBSTACK (Nov. 4, 2021), https://mtracey.substack.com/p/unprecedented-abuse-of-power-what; see also Michael Tracey, What Exactly Is Andrew Cuomo Guilty Of?, TABLET MAG. (Aug. 9, 2021), https://www.tabletmag.com/sections/news/articles/cuomo-michael-tracey (“While press accounts have near-uniformly declared the allegations set forth to be supremely “damning,” a closer examination of the report itself, as well as the peculiar surrounding details, leaves room for a bit more ambiguity.”).
Daily News Editorial Board, No Heroes Here: Cuomo Should’ve Resigned, But Attorney General’s Report has Serious Problems, N.Y. DAILY NEWS (Aug. 24, 2021), https://www.nydailynews.com/opinion/ny-edit-there-are-no-heroes-here-20210824- s5haa2xenjeftpvqfaz472cv5q-story.html.
Jim Zirin, The Case Against Cuomo Weakens, N.Y. DAILY NEWS (Oct. 22, 2021), https://www.nydailynews.com/opinion/ny-oped-the-case-against-cuomo-teeters-20211022- ykgbhekj35d2nezanwzy3gmnqm-story.html.
19 https://www.newsday.com/opinion/commentary/cuomo-ouster-voter-suppression-1.50369097.
David Pinkus, Ousting Cuomo Disenfranchised NY Voters, NEWSDAY (Sep. 23, 2021),
20
(Nov. 16, 2021), https://www.newsday.com/long-island/politics/letitia-james-long-island-
Candice Ferrette, AG James Defends Harassment Investigation of Cuomo, NEWSDAY
association-1.50424577.
21
Id.

Attorney General Letitia Ann James November 18, 2021
Page 8
and evidence a violation of the Referral. Tellingly, your comments show further politicization and promotion of your misleading Report to boost your campaign.
Similarly, in your gubernatorial campaign announcement, you “ma[de] several allusions to Mr. Cuomo,” including a statement that, “‘I’ve held accountable those who mistreat and harass women in the workplace, no matter how powerful the offenders.’”22 There is no doubt that you now have a vested interest in defending the Report at all costs, despite its demonstrated errors and omissions to which you have not meaningfully responded.
Moreover, following the announcement of a criminal charge against the Governor by your
23
ally Sheriff Craig D. Apple,
you immediately issued a statement that Sheriff Apple’s criminal
complaint “validate[d] the findings in our report.”24 These are not the statements of a chief legal
officer, but of a campaigning gubernatorial candidate. Notably, other than claiming the timing
was of “coincidence,” you have not opined on Sheriff Apple’s complete failure to consult with the
District Attorney about the Sheriff’s “separate” investigation before the Sheriff inexplicably and
unilaterally filed the charge on the day before you announced your campaign for governor. The
25
Sheriff’s inexplicable and unprofessional conduct has been uniformly criticized.
22
(Oct. 29, 2021), https://www.nytimes.com/2021/10/29/nyregion/letitia-james-governor.html.
Katie Glueck, Letitia James Declares Her Candidacy for N.Y. Governor, N.Y. TIMES
23
24
25
See, e.g., Craig Apple (@CraigDApplesr), TWITTER (Oct. 6, 2021 9:01 a.m.), https://twitter.com/CraigDApplesr/status/1445736237269200897 (“Glad to team up with our Attorney General @TishJames who fought hard against big Pharma. . . .”).
Attorney General James Releases Statement After Criminal Charges Are Brought Against Former Governor Andrew Cuomo, LETITIA JAMES NEW YORK STATE ATTORNEY GENERAL (Oct. 28, 2021), https://ag.ny.gov/press-release/2021/attorney-general-james-releases-statement-after- criminal-charges-are-brought.
See, e.g., Wall St. J. Editorial Board, The Curious Andrew Cuomo Complaint, WALL ST. J. (Oct. 31, 2021), https://www.wsj.com/articles/the-curious-andrew-cuomo-charge-letitia-james- apple-soares-governor-race-11635707950 (arguing that the timing of the charges " raises questions about political motivations in the justice system that can’t be ignored.”); Brendan Lyons, Cuomo’s Arraignment Delayed as District Attorney Cites ‘Exculpatory’ Evidence, TIMES UNION (Nov. 5, 2021), https://www.timesunion.com/state/article/cuomo-arraignment-delayed- 16596096.php (“The Albany County district attorney's office, citing a ‘potentially defective" criminal complaint filed against former Gov. Andrew M. Cuomo by the county sheriff's office, on Friday was granted a 60-day adjournment for Cuomo to make his first scheduled court appearance on a misdemeanor forcible touching charge. A searing letter filed in City Court on Thursday by District Attorney David Soares also made reference to potentially ‘exculpatory’ evidence his office has turned over to Cuomo's defense counsel.”); Bill Mahoney, Cuomo Criminal Complaint ‘Potentially Defective,’ DA says, POLITICO (Nov. 5, 2021), https://www.politico.com/states/new-york/albany/story/2021/11/05/district-attorney-says-cuomo-

Attorney General Letitia Ann James November 18, 2021
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Further, as discussed in more detail below, there is strong evidence that Sheriff Applecommitted a felony in unlawfully disclosing grand jury information concern those allegations to the press. Yet, despite the fact that N.Y. Exec. L. § 75 requires an investigation of
26
Given the widespread criticism of your Report, and your demonstrated need to defend it as part of your gubernatorial campaign despite its omissions and errors, your Office should recuse itself from any further decision-making regarding the Report—including release of transcripts, the rest of the evidence, and any choice of redactions concerning the evidence.
C. Your Selective and “Slow Rolling” Public Release of Some Evidence During a Pending Criminal Case and the Questionable Redactions by Your Office
On November 10, 2021, without getting input from the district attorneys’ offices purportedly investigating certain allegations in your Report, you made the unilateral decision to release on a “rolling basis” select evidence underlying the Report – only the transcripts and exhibits from the 41 interviews that you chose to transcribe out of the more than 179 witnesses you interviewed. Your decision to make this limited and selective disclosure now—while a criminal case initiated by Sheriff Apple is pending and the Albany County District Attorney is continuing his own investigation—was a political one, demonstrating the conflict between you fulfilling your role as the Attorney General of this state and your simultaneous campaign for governor.
criminal-complaint-potentially-defective-1392346 (“[Albany County District Attorney David] Soares wrote Judge Holly Trexler on Thursday that the ‘inexplicably filed’ criminal charge was ‘potentially defective’ and at ‘risk of a procedural dismissal.’”); Chris Churchill, Churchill: Apple at the Eye of Cuomo Storm, TIMES UNION (Nov. 6, 2021), https://www.timesunion.com/churchill/article/Churchill-Apple-s-at-the-eye-of-Cuomo-storm- 16596296.php (“The complaint, apparently filed prematurely, was quickly engulfed in a swirl of confusion and controversy.”); Phil Serpico, Letter: 'Judgmental failure' in Albany Sheriff Apple's Handling of Cuomo Case, TIMES UNION (Nov. 10, 2021), https://www.timesunion.com/opinion/article/Letter-Albany-Sheriff-Craig-Apple-16588391.php (“Albany County Sheriff Craig Apple, not an attorney, needs a refresher course in protocols because he set the stage for what should be a dismissal of charges upon the appearance of the defendant, former Gov. Andrew Cuomo, before the court.”)
26
law enforcement misconduct,
blatant criminal disclosure of grand jury information and demanding accountability for the source of that unlawful disclosure.
you have remained silent rather than expressing outrage at the
N.Y. Exec. L. § 75 (providing that the deputy attorney general has the duty and responsibility to “receive and investigate complaints from any source, or upon his or her own initiative, concerning allegations of corruption, fraud, use of excessive force, criminal activity, conflicts of interest or abuse in any covered agency.”).

Attorney General Letitia Ann James November 18, 2021
Page 10
First, you selectively transcribed only 41 interviews of the more than 179 witnesses you interviewed, and you are now selectively and slowly disclosing only those transcripts. Those 41 transcripts do not tell the full story. For example, Brittany Commisso was interviewed more than once by your Office, yet you only released the transcript of her one transcribed interview on
27
Second, your decision to slow roll the release of the 41 transcripts and accompanying exhibits is meant to inflict maximum damage to the Governor over the course of several weeks through numerous news cycles as you campaign and fundraise to become governor. Your purported explanation that the transcripts will be released on a “rolling basis” as “they become available” defies credibility because your Office has already provided the Assembly Judiciary Committee “with all relevant evidence.”28 The only purpose of a slow roll of the transcripts is to prejudice to the Governor.
Third, your Office’s decisions of what to redact in the publicly released transcripts and exhibits demonstrates bias and that you are influenced by personal, political motivations. For example, your Office failed to redact Trooper-1’s hearsay testimony about an alleged relationship
29
May 17, 2021 even though she was first informally interviewed in March 2021.
McGrath and Ms. Bennett were informally interviewed—yet your Office chose not to release the notes and memos from those informal interviews. Further, you also chose not to release memos of your Office’s informal interviews of Executive Mansion staff who told your office they did not witness inappropriate behavior by the Governor.
between the Governor and a senior staffer, leading to salacious articles spreading the false rumor. Yet, your Office redacted from the Governor’s testimony evidence of potential conflicts concerning your investigation – references to Lindsey Boylan’s campaign consultant Trip Yang
27
28
29
Similarly, Ms.
See Brendan Lyons, In Her Own Words: Woman describes Cuomo's alleged groping at mansion, TIMES UNION (Apr. 7, 2021), https://www.timesunion.com/news/article/cuomo- alleged-groping-victim-mansion-incident-16078748.php (“On March 12, the woman was accompanied by her attorney, Brian D. Premo of Albany, when she was interviewed in New York City by investigators with the state attorney general's office, according to a person briefed on that matter.”).
See, e.g., Attorney General James' Statement on Cooperation with NYS Assembly Investigation Into Sexual Harassment Allegations Against Governor Cuomo, LETITIA JAMES NEW YORK STATE ATTORNEY GENERAL (Aug. 3, 2021), https://ag.ny.gov/press- release/2021/attorney-general-james-statement-cooperation-nys-assembly-investigation-sexual (“At the Assembly’s request, we have provided the Assembly Judiciary Committee with the report that was released today, and we will provide them with all relevant evidence. We will cooperate with their investigation as needed.”).
Bernadette Hogan and Bruce Golding, Ex-Gov. Cuomo, Married Aide DeRosa Allegedly Caught ‘Making Out’: Trooper, N.Y. POST (Nov. 12, 2021), https://nypost.com/2021/11/12/ex- gov-cuomo-married-aide-derosa-allegedly-caught-making-out-trooper/.

Attorney General Letitia Ann James November 18, 2021
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communicating with your chief of staff Ibrahim Khan about Ms. Boylan’s allegations during her campaign. Your Office chose to redact Lindsey Boylan’s testimony that we believed discussed her relationship with her former boss and ESD-chief Howard Zemsky. Given that Ms. Boylan sent Mr. Zemsky a “disparaging message” which he found “jarring” and “threatening” and caused him to flip-flop in his recollection, their relationship could not be more relevant to Ms. Boylan’s credibility and any conclusions you drew about her credibility. Their relationship is critical to the lack of corroboration for Ms. Boylan’s most serious claims against the Governor, which he adamantly disputes.
Fourth, your sudden decision on November 10, 2021 to release some of the evidence was not about transparency, fairness or the public interest. No legitimate law enforcement officer would publicly release some witness statements at this time, because of Sheriff Apple’s pending criminal charge against the Governor and the Albany County District Attorney’s announcement that he has a pending investigation. By blasting out the transcripts to the world in a high-profile matter, you broadcast to each potential witness what other witnesses have said. This severely prejudices a pending criminal case and investigation, as the press has written numerous stories about the witness testimony. Further, those transcripts contained false and salacious hearsay, as well as irrelevant information, which you knew would be prejudicial to the Governor publicly, as well as in Sheriff Apple’s pending criminal case and the pending investigation in Albany County. That is improper and unprofessional in law enforcement.
Finally, over this past weekend, on or about November 13, 2021, your Office briefly took down some of the transcripts that were publicly released on November 10, 2021. Despite your
30
Director of Communications’ claim that “everyone has tech issues!”
transcripts released November 10, 2021 and re-posted on November 13, 2021 reveal alterations in redactions. For example, although changes to Alyssa McGrath’s testimony increased redactions, the revised version of Lindsey Boylan’s testimony removed redactions to identify certain individuals. You must explain why alterations were made to the transcripts publicly released on November 10 and by whom. Despite the November 10 press release that accompanied the transcripts and other evidence professing “an effort to provide full transparency to the people of New York,”31 your Office misled the public in stating that the transcripts were taken down due to technical issues when they were in fact removed and replaced with versions that changed existing redactions and publicly available information.
30
Delaney Kempner (@delaneykempner), TWITTER (Nov. 13, 2021 5:56 p.m.),
https://twitter.com/delaneykempner/status/1459656489384255490.
31
, comparisons between the
Transcripts and Exhibits From Independent Investigation Into Sexual Harassment Allegations Against Former Governor Cuomo Begin to Be Released, LETITIA JAMES NEW YORK STATE ATTORNEY GENERAL (Nov. 10, 2021), https://ag.ny.gov/press-release/2021/transcripts- and-exhibits-independent-investigation-sexual-harassment-allegations.

Attorney General Letitia Ann James November 18, 2021
Page 12
II. Your Office Must Immediately Release to Us All Evidence Underlying the Report
Since the Report was issued on August 3, 2021, we have repeatedly requested the
32
There is no question that you have been able to provide us with your investigative file at any time over the past several months. Just last week, your Office announced that it would publicly release the evidence on a “rolling basis.”33 Indeed, you claim that reasoning for that selective, public disclosure – when you still have not responded to our requests for all the evidence – was “in an effort to provide full transparency to the people of New York” because the “Albany County District Attorney’s Office informed the OAG that it would begin releasing evidence to Cuomo to comply with New York state’s discovery laws.”34 As discussed above, even this limited release of information demonstrated the need for us to be able to review all of the materials in your investigative file, not just those you cherry-picked to be released when it was politically convenient. We reserve the right to supplement our October 20, 2021 Application to amend, supplement, and correct the Report based on what the evidence will show.
III. Criminal Investigation Into Unlawful Grand Jury Disclosures By Sheriff
On November 8, 2021, we lodged a written demand, pursuant to N.Y. Exec. L. § 75, that an investigation be immediately commenced into the unlawful disclosures to the New York Post of grand jury information relating to Governor Cuomo and the strong evidence that Albany County
32
opportunity to access all evidence underlying the Report.
has not responded. Your refusal to provide us with all the evidence has handicapped our ability to make a submission to the Assembly Judiciary Committee pursuant to their invitation.
In over three months, your Office still
See, e.g., Aug. 6, 2021 letter to Special Deputies to the First Deputy Attorney General; Oct. 8, 2021 letter to the First Deputy Attorney General; Oct. 20, 2021 Application to Amend, Supplement, and Correct the Report; Governor Andrew M. Cuomo, Attorney Rita Glavin Holds Media Availability, YOUTUBE (Aug. 6, 2021), https://www.youtube.com/watch?v=FP6_KMVBnNk; Governor Andrew M. Cuomo, Outside Counsel Rita Glavin Makes an Announcement, YOUTUBE (Aug. 10, 2021), https://www.youtube.com/watch?v=otxfPhSoBkc; WGRZ-TV, Gov. Cuomo’s outside counsel Rita Glavin holds virtual briefing, YOUTUBE (Aug. 20, 2021), https://www.youtube.com/watch?v=UpmviENazuA.
33
34
Transcripts and Exhibits From Independent Investigation Into Sexual Harassment Allegations Against Former Governor Cuomo Begin to Be Released, LETITIA JAMES NEW YORK STATE ATTORNEY GENERAL (Nov. 10, 2021), https://ag.ny.gov/press-release/2021/transcripts- and-exhibits-independent-investigation-sexual-harassment-allegations.
Transcripts and Exhibits From Independent Investigation Into Sexual Harassment Allegations Against Former Governor Cuomo Begin to Be Released, LETITIA JAMES NEW YORK STATE ATTORNEY GENERAL (Nov. 10, 2021), https://ag.ny.gov/press-release/2021/transcripts- and-exhibits-independent-investigation-sexual-harassment-allegations.

Attorney General Letitia Ann James November 18, 2021
Page 13
Sheriff Craig D. Apple was the source of that unlawful disclosure. Section 75 requires that this unlawful disclosure be investigated. We also requested that you appoint an independent prosecutor to handle the investigation, given your support of Sheriff Apple and his support of you.
You have not responded to our letter nor have you informed us that you have appointed an independent investigator to conduct the required investigation. Please inform us immediately if you intend to comply with your obligations under Section 75 and investigate the criminal disclosure of grand jury information and the strong evidence of Sheriff Apple’s involvement. We reserve all rights with respect to this issue.
Sincerely,
Rita M. Glavin

****

Nov. 16

Statement From Jim McGuire, Esq. Regarding Today’s Action by JCOPE

“Today’s action by JCOPE — following two prior failed attempts — is transparently political on its face. We look forward to vigorously contesting in court any efforts JCOPE makes to enforce this baseless and improper decision.”

****

Nov. 16

Statement from Rich Azzopardi, spokesman for the 56th Governor of New York Andrew M. Cuomo

Attached please find the internal memo outlining the Chamber's extensive communications regarding the book approval, and the clear distinction of use of public resources versus staff volunteering their own time. It also makes clear that JCOPE determined the executive director needed to be recused, a decision made internally that Governor Cuomo cannot be held responsible for.

"These JCOPE members are acting outside the scope of their authority and are carrying the water of the politicians who appointed them. It is the height of hypocrisy for Hochul and the legislature's appointees to take this position, given that these elected officials routinely use their own staff for political and personal assistance on their own time.

This is the 3rd time JCOPE has attempted to rescind their own approval, and this amounts to nothing more than Albany political corruption at its worst. JCOPE wants to rescind an approval that was relied upon to play a political game and that means a JCOPE opinion cannot be relied upon by anyone and is subject to political winds. Our counsel's request to JCOPE was clear, saying 'no government resources' would be used -- consistent with that representation, people who volunteered on this project did so on their own time. Furthermore, the Governor cannot be held responsible for internal decisions over recusals and approvals made by JCOPE.

They truly are a J-JOKE."

****


To: Files
From: Judith Mogul
Date: August 19, 2020
Re: JCOPE Approval and Ethics Guidance re GAMC Book American Crisis


With the announcement Monday, August 17, 2020, of the Governor’s forthcoming book chronicling his experience leading the state through the first wave of the Corona Virus pandemic, this memorandum memorializes my communications with JCOPE related to obtaining outside activity approval and my guidance regarding work on the book consistent with state ethics laws and rules.

Even prior to contacting JCOPE, I confirmed that no state resources would be used in writing the book, and that any staff who were assisting the Governor on the book would do so on their own time, either on evenings or weekends, or by taking leave.

I reached out to JCOPE on or about July 9, 2020 to obtain outside activity approval for the Governor before he negotiated a contract with a book publisher. By that time, we had already narrowed the potential publishers to those that did not pose an actual or potential conflict of interest by virtue of having business before the state (either through contracts or lobbying). I spoke first with Monica Stamm, who referred me to Martin Levine who explained to me that JCOPE staff had authority to decide all outside activity approval requests. I explained in broad terms that the Governor was writing a new memoir, with a focus on the COVID-19 crisis, and that we wanted to make sure he had outside activity approval prior to negotiating a contract with a publisher.

On July 10, 2020, I submitted a letter to Mr. Levine formally requesting approval for the Governor to author the book, and representing that (1) he would abide by the nine specific factors governing when a public officer may author a book for compensation that JCOPE had articulated in multiple advisory opinions and in its approval of his previous book and (2) that the publishers he was considering were not “interested sources” and would not present a conflict or the appearance of a conflict of interest.

Following submission of the request for outside activity approval, I informed Mr. Levine over the telephone that the Governor had selected Penguin Random House/Crown as the publisher for the book. On Monday, July 13, Mr. Levine and I had a telephone conversation in which he conveyed that the Staff had granted provisional approval of the outside activity request, such that the Governor could negotiate a contract with Penguin Random House/Crown, but that the Staff would require additional information concerning the terms of the contract before providing final approval. I confirmed that conversation in an email with Mr. Levine on July 13. The additional information we agreed to provide to the Staff included any obligations the Governor would assume beyond delivery of a manuscript, and a representation from the publisher that the terms were usual and customary.

Thereafter, on July 16, 2020 I provided Mr. Levine with a letter from Penguin Random House/Crown that the terms of the contract were usual and customary based on the surrounding circumstances, which I explained in a telephone conversation included the keen national interest in the Governor’s management of the COVID-19 crisis. During conversations on July 16 with Mr. Levine I also conveyed the additional information Mr. Levine had requested before final approval, including and that the Governor had agreed to record an audio book and to do 10 media appearances within a 60-day window of the book’s publication.

On the evening of July 16, 2020, Mr. Levine confirmed that JCOPE Staff had approved the Governor’s request and that we would be receiving a written approval on the following day, July 17, 2020. It is my impression that Mr. Levine was consulting with the JCOPE Chair in addition to other members of the Staff throughout the process and before providing that approval. We received the written outside activity authorization on July 17, 2020.

Mr. Levine and I specifically discussed that the Governor could write about his management of the COVID crisis without running afoul of the third factor (“the subject matter is sufficiently unrelated to the individual’s job responsibilities so that authorship, advice, or material provided in the book could not be viewed as part of his official position”). That factor was designed to prevent public officers from being compensated for publishing materials that the state paid them to author as part of their official duties. Accordingly, as with its approval of the Governor’s prior book project, Mr. Levine confirmed, as subsequently explicitly memorialized in the written approval, that the presence in the book of material or knowledge acquired by the Governor in the course of performing his official responsibilities would not violate the third requirement. I have read the final draft manuscript prior to publication and confirmed that the book is entirely consistent with the JCOPE guidance.

I also spoke with Martin Levine on August 19 after the press stories announcing the book broke and he expressed no concerns.


****

Nov. 11

STATEMENT FROM RITA GLAVIN, ATTORNEY FOR THE 56TH GOVERNOR OF THE STATE OF NEW YORK ANDREW M. CUOMO

“The Attorney General’s slow-rolling and selective disclosure to the world now of the 41 transcribed interviews (out of the 179 people interviewed and 74,000 documents collected) is obvious: The AG wants to prejudice people against the Governor while the criminal charge unilaterally initiated by Sheriff Apple is pending, and distract from the AG’s misleading and unreliable report. The Attorney General deliberately harms a pending case by broadcasting to each witness what other witnesses have testified to, and spreading false and salacious hearsay and rumors. No legitimate law enforcement officer acts like this in a pending case. Disturbingly, this has never been about fairness or due process.”

****

Nov. 10

Statement from Rich Azzopardi, Spokesman for the 56th Governor of the State of New York Andrew M. Cuomo

“Finally — after three months for stalling — Tish James has been forced to release transcripts as more and more people are questioning her shoddy and politically motivated report. However, these transcripts include questionable redactions, and raise even more questions about key omissions made during this slanted process, which reeks of prosecutorial misconduct. This was clearly done to change the subject, but the attorney general needs to answer the following questions.”

In the Governor’s testimony he said directly to Joon Kim that Ibrahim Khan — the AG’s chief of staff— had been coordinating with Trip Yang and Lindsey Boylan‘s campaign and that it suggested collusion between James and Boylan. Other than to hide this obvious conflict of interest, why was this information redacted?
In the Boylan testimony, why didn’t they ask her about the fact that Liz Fine, current counsel to the governor, requested Boylan‘s termination for abusing staff?
Why didn’t they question Boylan about her texts to executive chamber staff specifically saying she would retaliate against the governor because “life is long and so is my memory and so are my resources” and “the future is coming after (expletive.)”
Brittany Commisso testified that the governor became more reserved after Boylan started tweeting attacks against him. Did James tell Sheriff Apple that the new date of her allegation, December 7, was after Boylan started tweeting and therefore inconsistent with Commisso’s testimony?
James said that she spoke to politicians in Albany for her investigation. Who are those politicians that James spoke to to inform her investigation and where are their transcripts?
James’ press release now says it was an “independent investigation." However, just four weeks ago James said that she personally conducted the investigation. Was she lying then or is she lying now?
Why didn’t investigators ask Charlotte Bennett about her activity at Hamilton College and her filing a false allegation?
Why did they omit the circumstances that caused the governor to talk to Bennett and provided the motivation for their conversation?
Why is James suddenly releasing the transcripts now after she said she had sent them to several district attorneys who are doing investigations?
Are the other district attorneys besides Albany not doing investigations?

The more we know about this investigation the more we know what a fraud it was.

****

Attorney Rita Glavin Formally Calls on AG James to Investigate Unlawful Grand Jury Disclosures by Albany County Sheriff's Office

Today, Rita Glavin, attorney for former Governor Andrew M. Cuomo, called on Attorney General Tish James to immediately commence an investigation into the unlawful disclosure of grand jury information relating to Governor Cuomo and evidence that the Albany County Sheriff's Office was the source.


The formal submission is attached.

VIA EMAIL
Hon. Letitia Ann James
New York State Attorney General Office of the Attorney General The Capitol
Albany, NY 12224-0341 Letitia.James@ag.ny.gov
GLAVIN PLLC
2585 Broadway #211 New York, New York 10025 646-693-5505
November 8, 2021
Re: Request for Criminal Investigation of Albany County Sheriff Craig D. Apple for Unlawful Disclosure of Grand Jury Information in Violation of N.Y. Penal Law § 215.70
Dear Attorney General James:
I represent former Governor Andrew M. Cuomo and write to request that, pursuant to N.Y. Exec. L. § 75, an investigation be immediately commenced into the unlawful disclosure to the New York Post of grand jury information relating to Governor Cuomo and the strong evidence that Albany County Sheriff Craig D. Apple was the source of that unlawful disclosure.
I further request that your Office, which is required to investigate complaints of criminal activity by law enforcement officers under N.Y. Exec. L. § 75, appoint an independent prosecutor to conduct this investigation given your apparent conflict of interest, as evidenced by:
1
(1) Your relationship with Sheriff Apple, including a recent public appearance with him on October 5, 2021 and his January 22, 2019 meeting with you, after which he claimed, “She’s awesome and I’m convinced will be the best one yet[;]”1
(2) Your official announcement that you would be running for governor, which you made the very next day after Sheriff Apple’s extraordinarily unusual action in filing a
Craig Apple (@CraigDApplesr), TWITTER (Oct. 6, 2021 9:01 a.m.),
https://twitter.com/CraigDApplesr/status/1445736237269200897 (“Glad to team up with our Attorney General @TishJames who fought hard against big Pharma....”); Craig Apple (@CraigDApplesr), TWITTER (Jan. 22, 2019 6:08 p.m.), https://twitter.com/CraigDApplesr/status /1087849393259192321 (“Got to meet our new Attorney General today. She’s awesome and I’m convinced will be the best one yet!”).

Attorney General Letitia Ann James November 8, 2021
Page 2
criminal charge against Governor Cuomo without any consultation with the District Attorney’s Office;2
(3) Sheriff Apple’s public statements at his October 29, 2021 press conference (the day you officially announced your run for governor) in which he expressed his gratitude to your Office in connection to his investigation, which he said he conducted “separate and apart” from that of the District Attorney’s Office;3
(4) Your reliance on your August 3, 2021 Report of Investigation Into Allegations of Sexual Harassment by Governor Andrew M. Cuomo (the “Report”) in support of your campaign for governor;4 and
(5) Your Report instigating the criminal investigation by Sheriff Apple and his leak of grand jury information to the New York Post in connection with that investigation.
Alternatively, we request that you seek a referral from Governor Kathleen Hochul pursuant to N.Y. Exec. L. § 63 to appoint a truly independent prosecutor to conduct this investigation of unlawful grand jury disclosures in violation of N.Y. Penal L. § 215.70.
1. Unlawful Grand Jury Disclosure by a Law Enforcement Official is a Felony
New York Law is unequivocal that “[g]rand jury proceedings are secret” and any “matter attending a grand jury proceeding” shall generally not be disclosed, including “all papers and proceedings relating to [a] subpoena,” which “shall be kept secret and not disclosed to the public by any public officer,” or any other individual specified in N.Y. Penal Law § 215.70. Crim.
2
See Katie Glueck, Letitia James Declares Her Candidacy for N.Y. Governor, N.Y. TIMES (Oct. 29, 2021), https://www.nytimes.com/2021/10/29/nyregion/letitia-james-governor.html; Jonathan Stempel, Former New York Governor Cuomo Charged With Misdemeanor Sex Offense, REUTERS (Oct. 29, 2021), https://www.reuters.com/world/us/misdemeanor-complaint-related-sex- crime-filed-against-ex-ny-governor-cuomo-court-2021-10-28/ (“‘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 stated.”).
3
Political Move, NEWS10 (Oct. 29, 2021), https://www.news10.com/news/watch-live-sheriff-
See Sara Rizzo, Sheriff: Cuomo Documents Leaked, Criminal Complaint Was Not a apple-holds-press-conference-on-cuomo-criminal-complaint/.
4
Katie Glueck, Letitia James Declares Her Candidacy for N.Y. Governor, N.Y. TIMES (Oct. 29, 2021), https://www.nytimes.com/2021/10/29/nyregion/letitia-james-governor.html (“She appeared to make several allusions to Mr. Cuomo. ‘I’ve held accountable those who mistreat and harass women in the workplace, no matter how powerful the offenders,’ she said at one point.”).

Attorney General Letitia Ann James November 8, 2021
Page 3
Proc. L. §§ 190.25(4)(a), 190.50(7) (emphasis added). As the New York State Court of Appeals has explained:
We have previously noted that ‘secrecy has been an integral feature of Grand Jury proceedings since well before the founding of our Nation’. . . The reasons for this venerable and important policy include preserving the reputations of those being investigated by and appearing before a Grand Jury, safeguarding the independence of the Grand Jury . . . and encouraging free disclosure of information by witnesses. . . .
People v. Fetcho, 91 N.Y. 2d 765, 769 (N.Y. 1998) (citation omitted).
Given the critical importance of grand jury secrecy to the criminal justice process, any “public servant having official duties in or about a grand jury . . . proceeding, or a public officer” is guilty of a felony for “unlawful grand jury disclosure” when “he intentionally discloses to another the nature or substance of any grand jury testimony, or any decision, result or other matter attending a grand jury proceeding which is required by law to be kept secret. . . .” N.Y. Penal L. § 215.70 (emphasis added); see also James v. Donovan, 14 N.Y.S.3d 435, 441 (N.Y. App. Div. 2d Dep’t 2015) (“So strong are the principles of grand jury secrecy and the policies underlying it that unauthorized disclosure of grand jury evidence is a felony in New York.”) (citing N.Y. Penal L. § 215.70).
2. Evidence that Sheriff Apple Unlawfully Disclosed Grand Jury Information and the Need for an Immediate Investigation
On August 7, 2021, Sheriff Apple held an unprecedented press conference, for no legitimate purpose, at which he announced that Brittany Commisso had filed a complaint against Governor Cuomo with the Albany County Sheriff. During that prejudicial press conference, Sheriff Apple acknowledged that the investigation of Ms. Commisso’s complaint was in the “very infant stages.”5 Sheriff Apple made clear that he had made up his mind:
 “I had a female victim come forward, which had to be the hardest thing she’s ever done in her life, and make an allegation of criminal conduct against the governor;”6
5
Gov. Cuomo, NPR (Aug. 7, 2021), https://www.npr.org/2021/08/07/1025772844/the-albany-
Dave Mistich, The Albany County Sheriff Is Investigating A Criminal Complaint Against county-sheriff-is-investigating-a-criminal-complaint-against-gov-cuom.
6
Victoria Bekiempis, Sheriff Hails Courage of Woman Accusing Andrew Cuomo of Sexual Misconduct, THE GUARDIAN (Aug. 7, 2021), https://www.theguardian.com/us- news/2021/aug/07/andrew-cuomo-criminal-complaint-albany-sheriff.

Attorney General Letitia Ann James November 8, 2021
Page 4
 “[T]he last thing we want to do is ... re- victimize these victims;7”
 “[A]t this point I’m very comfortable...saying [she] is in fact a victim.”8
Sheriff Apple’s comments on August 7 essentially pronounced the guilt of Governor Cuomo before he had done any investigation, and demonstrated that he intended to improperly prejudice the Governor by speaking to the press. As you know, Governor Cuomo denies the allegations, and is entitled to both the presumption of innocence and a fair and impartial investigation. By publicly stating his conclusion before having conducted any investigation, Sheriff Apple deprived Governor Cuomo of both.
On August 30, 2021, the New York Post published a story by reporter Bernadette Hogan stating that, according to Sheriff Craig Apple, Brittany Commisso “spent ‘several hours’ being interviewed” in connection with her allegations and that “[l]aw-enforcement officials have also issued ‘several subpoenas’ related to her allegations.”9 Given the procedural posture of the investigation, the only kind of subpoenas that could have been issued at that stage were grand jury subpoenas, which must be kept secret by law. Sheriff Apple’s disclosure to the New York Post of the issuance of grand jury subpoenas related to Ms. Commisso’s allegations was a blatant violation of grand jury secrecy.
Just two days after Ms. Hogan’s August 30, 2021 article, on September 1, 2021, Ms. Hogan published an “exclusive” article reporting that subpoenas had been issued in connection with the
10
District Attorney Office’s investigation.
specified that: (1) the subpoenas sought surveillance videos, phone records, and keycard swipes; and (2) the subpoenas were served on the Executive Manion and the state Capitol. Again, given the procedural posture of the investigation, the only kind of subpoenas that could have been issued
The article cited to a “source briefed on the matter” and
7
UNION (Aug. 7, 2021), https://www.timesunion.com/news/article/Albany-sheriff-says-probe-by-
Paul Nelson, Sheriff Says Probe by Cuomo Accuser to Begin in Earnest Next Week, TIMES Cuomo-accuser-to-16372050.php.
8 9
10
Id.
See Bernadette Hogan & Bruce Golding, Subpoenas Issued as Cuomo Mansion ‘Grope’ Accuser Meets with Investigators: Sheriff, N.Y. POST (Aug. 30, 2021), https://nypost.com/2021/08/30/subpoenas-issued-as-cuomo-grope-accuser-meets-with- investigators/ (noting that Sheriff Apple stated that investigators met with Ms. Commisso on Monday and that subpoenas were being issued in connection with her allegations).
See Bernadette Hogan & Bruce Golding, Surveillance Videos, Other Evidence Subpoenaed in Andrew Cuomo ‘Grope’ Probe, N.Y. POST (Sep. 1, 2021) https://nypost.com/2021/09/01/videos-other-evidence-subpoenaed-in-andrew-cuomo-grope- probe/.

Attorney General Letitia Ann James November 8, 2021
Page 5
at that time were grand jury subpoenas. This second blatant breach of grand jury secrecy was also unlawful.
It is likely that Sheriff Apple was the “source” for this September 1 article providing more information about the grand jury subpoenas for several reasons. First, Sheriff Apple has already demonstrated his willingness and inclination to speak to the press about this investigation—to the detriment of Governor Cuomo and his right to a fair process—by the number of interviews Sheriff
11
Fourth, in a 2011 taped recording of a meeting with investigators discussing police work and the law, Sheriff Apple stated that police officers know there are black areas, white areas, “and a big pool of gray,” and that: “I’ve been living in the gray for 22 (expletive) years. I know exactly how to manipulate the law and I’ve gotten pretty good at doing it. Is it right, wrong or indifferent? I don’t (expletive) care.”13 That disturbing statement by Sheriff Apple reflects a willingness to disregard the law for his own purposes and to the detriment of individual rights.
Given these unlawful grand jury disclosures, and the evidence of Sheriff Apple’s role in such disclosures, a prosecutor must investigate whether Sheriff Apple violated New York law by disclosing confidential grand jury information.
11
Apple has given and the two press conferences he has held.
unlawfully disclosed the issuance of grand jury subpoenas to the same reporter, Bernadette Hogan, just two days earlier. Third, Sheriff Apple has admitted to having regular communications with Bernadette Hogan and the press about this investigation. Specifically, in his October 29, 2021 press conference, Sheriff Apple stated: “I’d get calls from media on a daily basis. Every Monday I’d get a text from Bernadette, you know, ‘where are we?’”12
See, e.g., Sara Rizzo, Sheriff: Cuomo Documents Leaked, Criminal Complaint Was Not a Political Move, NEWS10 (Oct. 29, 2021), https://www.news10.com/news/watch-live-sheriff- apple-holds-press-conference-on-cuomo-criminal-complaint/; Denis Slattery, Albany sheriff defends handling of charges against former New York Gov. Andrew Cuomo, YAHOO! NEWS (Oct. 29, 2021), https://news.yahoo.com/albany-sheriff-defends-handling-charges-193700235.html (referencing Sheriff Apple’s appearance on “Talk 1300” radio); Paul Nelson, Sheriff Says Probe by Cuomo Accuser to Begin in Earnest Next Week, TIMES UNION (Aug. 7, 2021), https://www.timesunion.com/news/article/Albany-sheriff-says-probe-by-Cuomo-accuser-to- 16372050.php.
Second, Sheriff Apple had already
12
Move, NEWS10 (Oct. 29, 2021), https://www.news10.com/news/watch-live-sheriff-apple-holds-
Sara Rizzo, Sheriff: Cuomo Documents Leaked, Criminal Complaint Was Not a Political press-conference-on-cuomo-criminal-complaint/ (emphasis added).
13 https://www.timesunion.com/local/article/Undersheriff-tape-complicates-choice-1423795.php.
Undersheriff Tape Complicates Choice, TIMES UNION (June 14, 2011),

Attorney General Letitia Ann James November 8, 2021
Page 6
3. N.Y. Exec. L. § 75: Law Enforcement Investigative Office Charged with Investigating Complaints of Criminal Conduct by County Sheriffs
New York Exec. L. § 75 created a “law enforcement misconduct investigative office” within the New York State Attorney General’s Office, and prescribed that the “deputy attorney general shall have the following duties responsibilities...receive and investigate complaints from any source . . . concerning allegations of . . . criminal activity” by any local police department or Sheriff’s office. N.Y. Exec. Law § 75(a) (emphasis added). To be clear, this letter constitutes a “complaint” concerning Sheriff Apple’s “criminal activity” by unlawfully disclosing grand jury information to the New York Post on or about August 30, 2021, and likely again on or about September 1, 2021. These criminal acts must be investigated, as required by § 75.
For the reasons set forth above regarding your apparent conflict of interest, we request that an independent prosecutor be appointed to conduct this investigation into the unlawful grand jury disclosures in violation of N.Y. Penal L. § 215.70. Alternatively, we request that you seek a referral from Governor Hochul, pursuant to N.Y. Exec. L. § 63, to appoint an independent prosecutor to conduct the investigation.
Sincerely,
Rita M. Glavin

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