Albany County’s top prosecutor will not pursue a misdemeanor complaint against former Governor Andrew Cuomo, who had been due in court later this week to face a forcible touching charge for the first time.

District Attorney David Soares announced Tuesday he will ask the Albany City Court to drop the pending charge against Cuomo, which the Albany County Sheriff’s Office first filed in October. The development comes as several other law enforcement agencies in the state announced they won’t pursue charges against the former governor.

The charge was based on a claim by Brittany Commisso, an executive assistant who accused Cuomo of reaching under her blouse and groping her breast. The alleged encounter came after she was summoned to the Executive Mansion in Albany to assist the then-governor with his cell phone in late 2020.

Soares’ decision is the latest step in the continuing fallout from Cuomo’s resignation from office in August, which came after he was accused of sexual harassment by multiple women, including at least nine state employees.

There were early signs the charge faced an uncertain fate. It was at the center of a dispute between Soares and Albany County Sheriff Craig Apple, whose office angered the prosecutor when it filed the complaint without his knowledge.

Now, the complaint will be withdrawn and Soares is closing the investigation, saying he found Commisso credible but that the available evidence wouldn’t allow his office to meet the burden of proof.

Cuomo had been due in Albany City Court on Friday at 1:30 p.m. for an initial court appearance.

“While many have an opinion regarding the allegations against the former Governor, the Albany County DA’s Office is the only one who has a burden to prove the elements of a crime beyond a reasonable doubt," Soares said in a statement. "While we found the complainant in this case cooperative and credible, after review of all the available evidence we have concluded that we cannot meet our burden at trial."

Soares’ decision was first reported by the Times Union of Albany.

Commisso’s accusation was among the most serious detailed in an August report from attorneys hired by the state Attorney General’s Office, which concluded she was one of 11 women sexually harassed by Cuomo during his time as governor.

She told investigators she had been summoned to the Executive Mansion, the governor’s official residence in Albany, to assist Cuomo with using his cell phone. While there, she claims Cuomo pulled her in for a close hug. When Commisso suggested he would get them in trouble, she said Cuomo aggressively closed the door and reached under her shirt, groping her breast.

On October 28th, Apple’s office filed the forcible touching complaint against Cuomo, citing evidence including testimony by Commisso and BlackBerry PIN messages Cuomo and his staff used to communicate.

But the complaint came as a surprise to Soares, who was unaware Apple intended to file the complaint, which was filed as Soares’ office was in the midst of its investigation. In November, Soares wrote to Albany City Judge Holly Trexler warning the complaint was “potentially defective” and requested Cuomo’s court date be adjourned to January.

At the time of filing, Apple said he was caught off guard by how quickly the Albany City Court completed the acceptance of the complaint and issued a summons. He said he had intended to let Soares know at a meeting they had scheduled within a few days, but the complaint became public before then.

Still, Apple said he believed the case against Cuomo was strong.

"I feel very confident that the district attorney is going to prosecute this," Apple said in October.

Cuomo and his attorney, Rita Glavin, have repeatedly denied Commisso’s claim and criticized Apple’s investigation, claiming it defies logic.

“Governor Cuomo has never assaulted anyone, and Sheriff Apple’s motives here are patently improper," Glavin said in an October statement. "Sheriff Apple didn’t even tell the District Attorney what he was doing."

"This is not professional law enforcement; this is politics," Glavin continued.

Commisso’s story first became public in March, when the Times Union reported the claim from the then-unnamed executive assistant while Cuomo was facing sexual harassment claims. She later chose to make her name public in August.

She sat for lengthy testimony with the lawyers hired by the Attorney General’s Office in May, and was also cooperating with both the sheriff and district attorney.

"My client had no control over the filing or prosecution of criminal charges," Brian Premo, Commisso's attorney, said in a statement. "She had no authority or voice in those decisions. The only thing she has any power over is her resolution to continue to speak the truth and seek justice in an appropriate civil action, which she will do in due course."

Soares is the latest in a line of district attorneys to forgo criminal charges against Cuomo since the governor’s August 24th resignation.

On December 23rd, Acting Nassau County District Attorney Joyce Smith announced she wouldn’t bring charges against Cuomo for allegedly running the palm of his hand across the stomach and hip of a state trooper on his security detail, during an event at Belmont Park in 2019.

Five days later, Westchester County District Attorney Mimi Rocah announced she wouldn’t prosecute Cuomo for allegedly asking to kiss the same trooper – and following through – at the New Castle home he shared with his then-partner Sandra Lee.

In both cases, the district attorneys said the woman’s claims were credible but failed to reach the level of a crime.

On Monday, Elkan Abramowitz, an attorney representing Cuomo, issued a statement saying he had been informed by the Manhattan District Attorney’s Office that it has closed an investigation into the former governor’s handling of COVID-19 deaths in nursing homes.

Danny Frost, a spokesperson for the DA’s office, declined comment.